Author: Legal Correspondent
Publication: The Hindu
Date: September 12, 2007
URL: http://www.hindu.com/2007/09/12/stories/2007091253801500.htm
It destroys essence of equality embedded in
Constitution: counsel
* Article 15 (5) excluding minority institutions
inconsistent with Article 15 (4)
* No provision to remove educational disparities
among BCs
The 93rd Amendment under which the quota law
has been enacted "breaches the secular character of the Constitution,"
senior counsel K.K. Venugopal argued before the Supreme Court on Tuesday.
The "Constitution [93rd Amendment] Act
inserting Article 15 [5] is unconstitutional and violates the basic structure
of the Constitution," Mr. Venugopal, appearing for the Resident Doctors
Association, submitted before a Constitution Bench hearing petitions questioning
the amendment and the OBC quota law enacted under it.
The Bench, headed by Chief Justice K.G. Balakrishnan,
included Justices Arijit Pasayat, C.K. Thakker, R.V. Raveendran and Dalveer
Bhandari. Mr. Venugopal said, "The amendment breaches the secular character
of the Constitution by placing a minority based on religion, which has established
aided educational institutions, on a special footing, by exempting it from
bearing the common burden.
"It unequivocally destroys the essence
of equality embedded in the Constitution by excluding educational institutions
established by minorities and subjecting non-minority established institutions
alone to bear the burden of weaker sections that are less meritorious."
Counsel said making special provisions for
socially and economically backward classes (SEBCs) and the Scheduled Castes/
Scheduled Tribes for admissions, including by way of reservation of seats
in educational institutions, both in minority and non-minority established
aided institutions was covered by Article 15 (4).
\But Article 15 (5) excluding minority institutions
was inconsistent with Article 15 (4). "The Central Educational Institutions
(Reservation in Admission) Act, 2006, to the extent that it makes no provision
for excluding the creamy layer is invalid.
"The invalidity of identification of
the SEBCs by the Centre without laying down a mechanism and procedure, including
the requirement of following the principles of natural justice, renders the
entire Act arbitrary and violative of Article 14."
He will continue his submissions on Wednesday.
Earlier, continuing his arguments, senior
counsel P.P. Rao said, "The state's failure to provide free and compulsory
education at least to the children of the Backward Classes, the SCs and the
STs for six decades and the high rate of dropouts among them in classes 1
to 10 lead the irresistible conclusion that the state is concerned more about
the 'haves' among the BCs than the 'have-nots'. Moreover, in the present policy
there is no provision for removing the educational disparities among BCs inter
se."
Momentous occasion
Mr. Rao said it was a momentous occasion for
the court to decide the (quota) case and to lay down broad guidelines for
the Executive and prevent the country from disintegration.
Quoting jurist Nani Palkhiwala, he said that
by recognising caste and reservation in the Indra Sawhney case (Mandal case),
the apex court divided the country into forward and backward.
Certain aspects of this case needed reconsideration
to the extent "it permits identification of backward classes to be made
through the caste route," said Mr. Rao.