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Quota case: "93rd Amendment breaches secular character"

Quota case: "93rd Amendment breaches secular character"

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.

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