INDIA BUSINESS WORLD – FEBRUARY 2007
The Month that was ...

27% OBC QUOTA GETS A SC POSER

IN A development that is certain to aggravate the quota woes of the Manmohan Singh government, the Supreme Court asked the Centre to explain why it should not stay the decision to implement 27% reservation in higher educational institutions for the Other Backward Classes (OBCs). A bench comprising Justice Arijit Psayat and Justice S H Kapadia gave the centre two weeks to file its reply.

The apex court's notice came in response to public interest litigation (PILs) filed by a NGO, Youth for Equality, and by the former IIT director, P V Indiresan, challenging the January 7, 2007, notification of the centre as being unconstitutional and violating fundamental rights of other citizens.

With the apex court's notice to the Centre casting an element of doubt over the implementation of the OBC quota law, the CPM described the SC decision as 'contentious'. "It is up to the government to respond to this notice. But the issue is connected with the larger question of separation of authorities of the three arms of the state (executive, legislative and judiciary)," polit bureau member Sitaram Yechury said. The Congress refused to comment on the order, leaving it to the government to respond to the matter.

The PIL moved by the NGO alleged that the government's move to notify the quota law was politically motivated. Ashok Desai, the counsel appearing for the NGO, also argued that while providing reservation to the OBCs the 'creamy layer' in the community had not been excluded, which was in violation of the apex court verdict in the Mandal case. The petition also said that the government had conducted no study to ascertain the levels of backwardness and the inadequacy of opportunity before bringing in the OBC quota law. "The present move is motivated by a political agenda in view of the forthcoming elections in the state of UP as otherwise there would be no justification for taking such a pre-emptive step, notwithstanding the pendency of the proceedings and solemn assurance made before the apex court," the petition said.

Mr Indiresan's counsel Mukul Rohtagi argued that the Moily committee's recommendations for increasing the seats in central educational institutions would require a total investment of Rs 20,000 crore for additional infrastructure. He held that no money had been committed by the central government to the proportional increase of infrastructure to prevent a dilution of the standard of education. The PIL from the NGO also pointed out that certain educational institutions, such as IIM Ahmedabad, had already issued admission forms with a specific category for OBCs.

Although no signs of confrontation between the judiciary and the legislature is evident yet, the picture could change if the OBC quota judgement is challenged on the question of constitutional validity as laid down by the apex court in the 9th schedule case. In that order, the court had said all laws placed in the 9th schedule after 1973 were open to judicial scrutiny and could be tested for constitutional validity on the touchstone of basic structure as well as fundamental rights. The petitioners in the OBC quota PIL are arguing the 93rd amendment of the constitution is ultra-vires and repugnant to the provisions of fundamental rights in Articles 14, 15 (1), 19 (1(g)) as well as article 340 of the constitution.