The Telegraph
Since 1st March, 1999
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SC quota scan after close shave

New Delhi, Oct. 16: The Supreme Court today indicated it didn’t want the other backward classes quota enforced before it had examined the matter, but pulled back from the brink of making a formal request that might have set off a clash with Parliament.

In the end, the court asked that the House standing committee’s report on the reservation bill be placed before it “while deliberation (in Parliament) on the issue may go on’’.

Earlier, as the court dictated its order, it had said: “We request Parliament not to take a final decision without our examination of the matter.’’ But it deleted the sentence at the request of additional solicitor-general Gopal Subramaniam and set the next hearing for December 4.

Even the weaker form of the request has the potential to trigger controversy. Article 122 of the Constitution bars courts from inquiring into House proceedings.

Subramaniam, too, had argued that courts couldn’t look into a law’s constitutional validity until it had been enacted and enforced.

The government said it would consult the law ministry, but indicated it might place the standing committee report in Parliament first after it is handed in.

“As the parliamentary affairs minister, it is my duty to see the report is first tabled in Parliament,” Priya Ranjan Das Munshi said.

“It (the apex court direction) is not a jolt. We will discuss the matter with the law ministry and take necessary steps.”

The bill, providing for a 27 per cent OBC reservation in central higher education institutions, had been sent to the standing committee after it was tabled in Parliament on August 24.

The court’s point was that the quota was being legislated even in the absence of official data on the number of beneficiaries. It mentioned the bill’s silence on excluding the “creamy layer’’.

But Subramaniam argued that the courts couldn’t scrutinise a law until it had been passed.

“But you have no data…. First you play the game and then frame rules,’’ the court retorted.

The government had inserted an enabling provision — Article 15(5) — in the Constitution last year to pave the way for the reservation.

“We may not have proper data, but collection of it is a continuing process. We may say that until standing committee report is received nothing shall be done,’’ Subramaniam said, adding that the report was expected before the winter session, which begins on November 27.

He said the government was willing to disclose details whenever the court asked.

The court was hearing a public interest litigation, filed by Ashok Kumar Thakur, challenging the constitutional validity of reservation for socially and educationally backward classes (SEBCs) in central educational institutions.

The Centre had earlier responded in an affidavit, filed by joint secretary Sunil Kumar, that there was nothing “unsuitable or improper’’ in reserving seats for SEBCs at these institutions. It said the government was “conscious of the interests of all sections of society’’.

The affidavit made it clear that there was no proposal to extend reservation to private sector jobs.

“Such a policy for reservation in employment in the private sector has not even been formulated,’’ it said.

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