National

‘Quota law will perpetuate caste system’

New Delhi: The OBC quota law “which says the starting point for identification of socially and educationally backward classes (SEBCs) is through caste, will result in perpetuation of the caste system in the country,” senior advocate Fali Nariman argued in the Supreme Court on Wednesday.

The importance of Article 15 (1) (non-discrimination on grounds only of caste) “is that we must strive towards the ideal of a casteless society.” But the quota law would perpetuate something which Article 15 (1) “expressly forbids,” he told a Constitution Bench headed by Chief Justice K.G. Balakrishnan.

The Bench is hearing petitions questioning the 93rd Constitution Amendment and the OBC quota law enacted under it.

Appearing for P.V. Indiresan and others, Mr. Nariman said, “It will be a disaster to say that caste will be the starting point to identify the SEBCs. The phrase ‘special provision’ in Article 15 (5), not found in Article 16 (4) [providing reservation], needs to be given its due importance. The ‘special provision’ may include a provision for reservation but not necessarily so — the absence of the word ‘reservation’ in Article 15 (5) and its inclusion in Article 16 (4) are significant.”

Counsel said, “The ‘special provision’ has to be reasonable as not being excessive if there be reservation, and should be limited for a defined period — not for all time to come: must not be unreasonable, excessive or extravagant.”

The assumption that the SEBCs had to be identified from some readily available data such as caste was not well founded. “It is not as if caste has always been the starting point for determination of the SEBCs. There are other criteria sufficient to identify backward groups or communities, for example, income of the family — below the poverty line; educational status; location of residence — rural or urban area; type of living accommodation —kutcha house or no house/rented — urban/rural; occupation or profession of father/guardian — landless, unskilled labourer, etc.”

The backward classes would have to be identified with reference to one or more of these criteria. When so identified, those grouped together would then (and not until then) form a class of citizens “who are socially and educationally backward.” And “you [government] give them free education, scholarship, free books and some other inducements,” counsel said. The ‘special provision’ was not one which could be applied exclusively to certain categories from among Hindus alone. “There are a whole lot of people in other religions who are equally backward. What do you do with those backward classes in other religions?”

Mr. Nariman said the state could not justify ignoring altogether the advancement of the rest of society. Reasonableness was the touchstone of a ‘special provision.’

When the 27 per cent quota law specifically provided for identification of backward classes after proper determination, not doing so would render it unconstitutional. “It is sheer hypocrisy to say that caste will be the starting point for identification of class but, at the same time, you don’t want to have a caste census.”

Mr. Nariman told the judges, “This is not one more case for the Supreme Court to decide. The future of this country is in your hands and you have to lay down guidelines to ensure a casteless society.”

Arguments will continue on Thursday.

© Copyright 2000 - 2009 The Hindu