OBC reservation case for larger apex court Bench


Online edition of India’s National Newspaper:Friday, May 18, 2007


New Delhi:

Observing that not only substantial questions of law but also interpretation of the Constitution are involved, the SupremeCourt on Thursday referred to a larger Bench the petitions challenging the 93rd Constitution Amendment and the quota law enacted thereafter.

A Bench consisting of Justices Arijit Pasayat and Lokeshwar Singh Panta said that considering the importance of the issues involved and their likely impact on the social life of the country as a whole and the complexities of the questions, "it is appropriate that a larger Bench should hear the matter. Let records be placed before the Chief Justice of India for appropriate orders."

Summer vacation
Though it is the CJI’s prerogative to decide on the composition of the Bench, it is likely that a Constitution Bench of five judges will hear the matter. However the possibility of the matter being decided before the commencement of the academic year 2007-2008 is remote as the court closes for summer vacation on May 21. Therefore, it is unlikely that the 27 per cent quota for the Other Backward Classes will be implemented this year.

Pivotal challenges
Justice Pasayat, writing the order for the Bench, said, "The pivotal challenges in the writ petitions are: Challenge to the 93rd Amendment Act, 2005, by which Article 15 (5) has been inserted in Part III of the Constitution; challenge to the policy of reservation as a form of `affirmative action’; challenge to the `caste-based’ reservation or `caste based’ affirmative action and challenge to the Act.

"Vote politics"
The Bench said the petitioners pointed out that behind the socalled anxiety, which was nothing but a facade, to provide better educational facilities to socially and educationally backward classes, the objective was to play a political game and what was commonly accepted as "vote politics."

Issues for Bench
The basic issues, which need to be considered by the larger Bench, are: Whether the 93rd Amendment Act, 2005 and Article 15(5) are unconstitutional as being violative of the basic structure of the Constitution? If the Amendment is valid, how is it to be interpreted and implemented? Whether the 93rd Amendment insofar as it empowers the government to make special provisions by way of
reservation in educational institutions (including private institutions) is violative of the basic structure of the Constitution?

93rd Amendment
Whether the 93rd Amendment confers on the state an unbridled power to make special provisions for the "socially and educationally backward classes," without indicating the circumstances in which these may be made and without imposing any limit on either the contents or duration of such special provisions, and is, therefore, wholly destructive of the right of equality and thus violative of the basic structure?

Whether depriving non-minority institutions of the protection of Article 19(1) (g) — while excluding minority institutions from Article 15(5) — is inconsistent with the principles of secularism and thereby violative of the basic structure?





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