Author: Agencies
Publication: IBN Live.com
Date: August 16, 2007
URL: http://www.ibnlive.com/news/its-turn-of-upper-caste-to-suffer-tn-govt-tells-sc/46965-3.html
Having put on hold 27 per cent quota for OBCs
in Central educational institutions, the Supreme Court on Thursday wanted
to know whether Government could spell out norms for going ahead with its
reservation policy and submit a fact-sheet to it.
"Can the court not ask the Central Government
to justify with factual situation for continuing with the reservation policy,"
a five-judge Constitution Bench which is examining the validity of law providing
27 quota for OBCs in Central educational institutions, said.
"Certain norms have to be laid down as
a policy," the Bench headed by Chief Justice KG Balakrishnan said when
the anti-quota petitioners said some parameters have to be kept in mind while
making a mandatory law for quota.
While senior advocate Harish Salve was pressing
that the concept of equality as defined in the Constitution cannot be given
a go-by, the Bench remarked that "the government was bound by the recommendation
of the National Commission of Backward Caste (NCBC)."
Salve submitted that if the statute calls
for reservation for a class, then it (class) has to be identified and government
must come out with the parameters about backwardness.
"There are various tiers for backwardness,"
he said before the Bench, also comprising Justices Arijit Pasayat, CK Thakker,
RV Raveendran and Dalveer Bhandari.
While Salve had strong opposition to the Central
Educational Institution (Reservation for Admission) Act, 2006, senior advocate
K Parasaran, appearing for the Tamil Nadu Government said: "They (upper
caste) dominated for centuries and now they should suffer."
At this, the Bench said suppose only 10 per
cent people were the oppressor, then why the 90 per cent people should suffer
now. Salve also said it cannot be said if Brahmins have oppressed others in
Tamil Nadu for years, now it was their turn.
The senior advocate said special provision
providing quota to OBCs has to be the act of balance for social engineering.
"The identification of OBC must be based on sociological and statistical
data. It cannot be on personal expression, data or hunches," he said
adding that "political compulsions are driving the reservation policy."
"The legislative and executive action
has to be based on established data and what is indisputably the measure of
social engineering," he said.
However, "the system is misfiring,"
he said and elaborated it further by stating that government has not done
anything in the post-Indra Sawhney judgement (Mandal case) for identifying
the 'Creamy Layer' among the OBCs to exclude them from the benefit of reservation.
"Creamy Layer has no place in the reservation
system," he said maintaining that "reservation has become a measure
for entrenched right."
Salve said selection of caste for reservation
would further perpetuate caste system which then would destroy the purpose
of quota by way of special provision.
"If you start with caste, then ensure
periodic revision for extending the benefits of reservation," he said,
adding that while moving from caste to homogeneous class, the Creamy Layer
has to be excluded.
Tracing the history of reservation, Salve
said in the pre-1931 Census, people used to plead to be registered as forward
case and now reverse was happening.
The court by its March 29 order had stayed
the implementation of the law providing 27 per cent quota stating that the
data based on a 76-year-old Census cannot be the determining factor for affirmative
action.
