The anti-quota petitioners on Thursday contended before the Supreme Court that the law providing 27 per cent reservation for candidates from the Other Backward Classes in central educational institutions was irrational and arbitrary as it does not address the issue of removing educational disparities among backward classes.
"There is no provision for removing the educational disparities among the backward classes inter se. It depresses the bottom layers and pushes the upper layers among them," senior advocate P P Rao submitted before a five-judge Constitution Bench headed by Chief Justice K G Balakrishnan.
Maintaining that the policy of affirmative action persuaded by the government was irrational as it did not help the weakest among the weaker sections of the people at all, he said, "Any rational policy should give first priority to the advancement of the bottom most layer of the backward classes who are badly in need of education."
"The reservation policy benefits only educationally forward sections among the backward classes, instead of advancing the interests of socially and educationally more backward persons among them," he said before the Bench, which is examining the validity of the Central Educational Institution (Reservation in Admission) Act, 2006.
Rao said the 93rd Amendment to the Constitution which enabled the making of the controversial legislation itself was in violation of the Constitution as it excludes 'minority' institutions and liable to be struck down as unconstitutional.
"It (the 93rd Amendment) is also in violation of the principles of equality underlying Articles 14 and 15, which are part of the basic structure to the extend it excludes minority educational institution from its purview without there being any reasonable basis much less any no rational nexus with the object sought to be achieved," he said.
Rao, who asserted that caste cannot be the route to identify backward classes, maintained that the classes should be both socially and educationally backward to take benefit of the provision under the Constitution for admissions in educational institutions.
"Either social backwardness or educational backwardness alone will not do," he said before the Bench, also comprising Justices Arijit Pasayat, C K Thakker, R V Raveendran and Dalveer Bhandari.
The senior advocate said caste in its origin, was based on profession, occupation or business carried by a family from generation to generation and it will be a relevant factor for judging social backwardness only of such members of backward castes who are even today carrying on their traditional occupation in the traditional manner.
"For others who have left the traditional occupations and switched over to other better occupations, castes cannot be a relevant factor for ascertaining their social backwardness," he said adding that occupation is a rational and reliable guide, but not caste.
Referring to various apex court judgments, Rao said, "Poverty causes social backwardness" and educational backwardness does not depend solely on caste or poverty.
"Inaccessibility of educational institutions also results in educational backwardness," he submitted and emphasised that "having regard to the twin requirements of social and educational backwardness specified in Article 15(4) and 15(5) caste cannot be the route to identify backward classes".
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Maintaining that the terms "backwardness", "social backwardness" and "educational backwardness" are relative, Rao said the Constitution framers favoured 10 years of free education so that no one remained educationally backward and were of the view that those who attained education up to class 12 cannot be considered as educationally backward.
Therefore, the special provisions contemplated in Article 15(4) and 15(5) for providing admissions in educational institutions are for the benefit of socially backward citizens who are unable to have education upto higher secondary level, he said.
"Conversely, students who have passed 10+2 and who alone are eligible for admission to degree courses or professional colleges ie institutions of higher learning cannot be regarded as educationally backward any more and in their case Article 15(4) and 15(5) will have no application," he said.