IMPORTANT POINTS
1. As the challenge to the policy of 27% reservation for the Other Backward Classes (‘OBCs’) contained in the Central Educational Institutions (Reservation in Admission) Act, 2006, needs deeper consideration in the background of its legal and social importance, the Supreme Court has stayed the operation of the Act so far as it relates to Section 6 thereof for the OBCs category only.
2. There is need for periodical identification of the backward citizens and for this purpose the need for survey of entire population on the basis of an acceptable mechanism. Backwardness has to be based on objective factors whereas inadequacy has to factually exist.
3. The concept of creamy layer cannot prima facie be considered to be irrelevant as nowhere else in the world is there competition to assert backwardness and then to claim we are more backward than you.

Headnote:Central Educational Institutions (Reservation in Admission) Act, 2006—Section 6—Validity—Policy of 27% reservation for Other Backward Classes (OBCs) in Central Educational Institutions—Interim order staying process of implementation of the Act so far as it relates to Section 6 thereof for the OBCs category only—Applicability of ‘creamy layer’ rule—Whether stand of Union of India that creamy layer rule is applicable only to Article 14 and not Article 15(5) of the Constitution is based on any sound foundation—Whether a different form of preferential treatment other than quotas could be employed—Whether Article 15(4) and 16(4) are a facet of equality or a derogation from it—Issues need deeper consideration in the background of their legal and social importance—Writ petitions listed for final hearing—Constitution of India—Articles 14, 15 and 16—Equality—Concept of.
       Held : There is no dispute and in fact it was fairly accepted by learned Additional Solicitor General that there is need for periodical identification of the backward citizens and for this purpose the need for survey of entire population on the basis of an acceptable mechanism. What may have been relevant in 1931 census may have some relevance but cannot be the determinative factor. As was observed by this Court in Nagaraj’s case (supra) backwardness has to be based on objective factors whereas inadequacy has to factually exist. (Para 23)
       The concept of creamy layer cannot prima facie be considered to be irrelevant. It has also to be noted that nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere else in the world is there competition to assert backwardness and then to claim we are more backward than you. This truth was recognized as unhappy and disturbing situation and such situation was noted by this Court as a stark reality in Indra Sawhney’s case.(Para 25)
       Differentiation or classifications for special preference must not be unduly unfair for the persons left out of the favoured groups.(Para 31)
       It remains to be examined as to whether a different form of preferential treatment other than quotas could be employed as at some stage an affirmative action concept can be focused in this direction also. Though it is submitted that the number of seats available for the general category is not affected, but that is really no answer to the broader issue. (Para 35)
       If there is possibility of increase in seats in the absence of reservation it could have gone to the general category. If the stand of learned Additional Solicitor General is accepted that the exercise was not intended to be undertaken immediately and the increase would be staggered over a period of 3 years it could not be explained as to why a firm data base could not be evolved first, so that the exercise could be undertaken thereafter. By increasing the number of seats for the purpose of reservation unequals are treated as equals. The stand of learned Additional Solicitor General is that imperfection may be there in the data but so far as the existing modalities are concerned there is no difficulty in adopting the same.(Para 36)
       It, therefore, needs no reiteration that the creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism. It is a part of constitutional scheme. Therefore these cases have to be examined in detail as to whether the stand of Union of India that creamy layer rule is applicable to only Article 16(4) and not Article 15(5) is based on any sound foundation. That is more so because the lists relatable to Article 16(4) form the foundational base for Article 15(5). (Para 40)
       In the background of what has been explained above, it would be desirable to keep in hold the operation of the Act so far as it relates to Section 6 thereof for the OBCs category only. We make it clear that we are not staying operation of the Statute, particularly, Section 6 so far as the Scheduled Castes and Scheduled Tribes candidates are concerned. It would be permissible for the respondent-Union of India to initiate or continue process, if any, for determining on a broad based foundation “Other Backward Classes” notwithstanding pendency of the cases before this Court and without prejudice to the issues involved.(Para 41)

JUDGMENT

Dr. Arijit Pasayat, J.—In this I.A. prayer has been made to grant interim protection pending final disposal of the writ petitions.

2. In the writ petitions the policy of 27% reservation for the Other Backward Classes (in short the ‘OBCs’) contained in the Central Educational Institutions (Reservation in Admission) Act, 2006 (in short the ‘Act’) is the subject matter of challenge. The primary ground of challenge is that the Union of India has failed in performing the constitutional and legal duties toward the citizenry and its resultant effect. Consequentially the Act shall have the effect and wide ramifications and ultimately it shall have the result in dividing the country on caste basis. It would lead to chaos, confusion, and anarchy which would have destructive impact on the peaceful atmosphere in the educational and other institutions and would seriously affect social and communal harmony. The constitutional guarantee of equality and equal opportunity shall be seriously prejudiced. It has been contended that a time has come to replace the “vote bank” scenario with “talent bank”. The statute in question, it is contended, has lost sight of the social catastrophe it is likely to unleash. Not only the products would be intellectual pigmies as compared to normal intellectual sound students presently passing out. It has been highlighted that on the basis of unfounded and unsupportable data about the number of OBCs in the country the Act has been enacted. It has been pointed out that this Court in Indra Sawhney v. Union of India and Ors. (1992 Supp. (3) SCC 217) had recognised the concept of “creamy layer” amongst the advanced OBCs to be kept out of preferential treatment. The population data of 52% projected by the Mandal Commission was not actually given the seal of acceptance. In any event, this Court in its judgment dated 16.11.1992 directed the Government to constitute a permanent body by 15th March, 1993 for examining and recommending for inclusion or exclusion in the lists of backward classes of citizens. The National Commission for Backward Classes Act, 1993 (in short the ‘Backward Classes Act’) defines ‘backward classes” to mean such backward classes of citizens other than the Scheduled Castes and Scheduled Tribes as may be specified by the Central Government in the lists. In terms of Section 2(c) of the Act “lists” mean lists prepared by the Government of India from time to time for the purpose of making provision for the reservation of appointments or posts in favour of backward classes of citizens which in the opinion of the Government are not adequately represented in the services under the Government of India and any legal or other authority within the territory of India or under the control of the Government of India. Though there is a specific provision in Section 11 of the Backward Classes Act for a periodic revision of the lists, same has not been done, and on the contrary additions are being made. The rational of 27% having been arrived at on the mythical figure that the OBCs are 52% in the country and even the ratio of 27% reservation for the students belonging to other backward classes in the educational institutions is to be funded and controlled by the Central Government. The same is to be enforced from May 2007. It is highlighted that after 1931 census there has never been any caste-wise enumeration or tabulation which in essence corrodes the credibility of the claim of 52% population of other backward classes.

3. It is pointed out that in terms of Section 2(g), 3(iii), Sections 5(1)(2) and 6 of the Act, 27% seats are being reserved for other backward classes out of only permitted strength. The expression “Other Backward Classes” means the class or classes of citizens who are socially or educationally backward and are so determined by the Central Government. There has never been any determination on any acceptable basis. The parameters provided in the Backward Classes Act have not been kept in v

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2007 Supreme(SC) 380

Cases Referred (7)