The court saw no merit in the Government’s application seeking modification of its stay order and questioned the absence of creamy layer provision and economic indictors to determine backwardness.

The Government argued that the March 29 decision by the Bench of Justices Arijit Pasayat and LS Panta could not be sustained in view of a 1992 nine-judge SC decision in Indira Sawhney (Mandal) case. The Centre had argued that since the issue in question involved constitutional matters, a larger Bench comprising at least five judges must decide the case.

Refusing to interfere with its past order, the Bench took serious exception to the Centre’s selective reading of the 1992 judgement. The Mandal decision had clearly held that creamy layer shall be excluded from the scheme of reservation. But the Central Educational Institutions (Reservation in Admission) Act 2006 failed to exclude the same.

The Bench further noted that the Mandal decision talked of backwardness based on economic indicators too, apart from educational and social backwardness.

“Often the deprived is economically backward and not essentially educationally backward,” the Bench said, adding that on this basis Mandal had carved out socially and educationally backward classes. “What has been done to translate it?” the Bench questioned the Centre.

Attacking the Centre’s double standards to rely upon the 1992 judgement, the Bench noted, “If your logic is based on Indira Sawhney, then in substance you have to adopt it rather than partially taking and dropping portions from it.”

Faced with these uncomfortable questions, Solicitor General GE Vahanvati tried at length to convince the Bench that the court order was an interim order and issues involving constitutional issues could not be decided by it. It even sought vacation of stay by filing a modification application, which the court refused to accept. Giving its opinion, the Bench remarked, “the order is to operate finally. So far as OBC is concerned, the stay is final otherwise why did we make a classification between OBC and SC/ST since the challenge before the court was against SC/ST also.”

Even for argument sake, if the order is accepted to be interim, the court wished to know what change in circumstances has occurred between the passing of the order and now, which the court failed to consider. The Solicitor General argued that in the interest of balance of convenience, Parliament had undertaken the “Herculean task” to increase seats in Central institutions so that the general category students are not affected. But the Bench turned down the argument suggesting “in this process you make unequals equal.”

The court even defended its decision to defer the OBC quota process by one year stating, “We want to frame the rules and then play the game.” The Centre suggested that the process of identifying OBC is a continuous exercise and people are looking forward to get admission in Central institutions. But the Bench sought to draw a distinction by suggesting, “the question is getting a seat to which he/she is constitutionally entitled.” This involves constitutional issues, which requires detailed consideration by an appropriate Bench. But on Centre’s repeated insistence, it remarked, “If you could wait for 56 years, six months wont make a difference.”

The petitioners who too argued at length challenging the Government’s initiative to implement OBC quota in educational institutions stated that the 2006 Act as it exists provides for the Government to increase seats. Senior advocate Harish Salve argued that the Act provides that 27 per cent seats shall be reserved for OBCs even if the Centre finds it economically feasible to increase seats in any of its institutions.

Pointing out another inherent flaw in the Act, Salve argued that the Act provides for an annual permitted strength over and above which the seats will be increased to accommodate OBCs. Giving a hypothesis, he suggested in the first year if there are 100 permitted seats, adding 27 more seats will take the prescribed strength to 127 for the next year and 27 per cent quota will be implemented against the increased strength. This argument appealed even to the Bench.

Besides Salve, senior advocates Rajeev Dhawan and ML Lahoty argued that reservation should not be allowed to become a self-perpetuating system which may allow persons to claim it as a right. They further attacked the Centre’s decision to increase seats only to accommodate OBC students as being discriminatory and foul of the Constitutional provision of Article 29(2), which suggests that no citizen shall be denied admission into any State-run or aided educational institution on grounds of religion, race, caste or language.

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