It's turn of upper caste to suffer, TN Govt tells SC

New Delhi: 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.