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Sarvajan Hitay Sarvajan Sukhay-For The Gain of The Many and For The Welfare of The Many-
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Sarvajan Hitay Sarvajan Sukhay-For The Gain of The Many and For The Welfare of The Many

Online edition of India’s National Newspaper
Wednesday, Oct 31, 2007

Reservation needed for real equality, says Jethmalani

Legal Correspondent

Centuries of injustice to backward classes still continuing

Court must respect legislative judgment

Total population of country is irrelevant

New Delhi: Providing 27 per cent quota for the Other Backward Classes in higher educational institutions is a constitutional necessity to ensure not formal or technical equality but real and substantial equality, senior counsel Ram Jethmalani argued in the Supreme Court on Tuesday.

Appearing for the intervenor, the Rashtriya Janata Dal in support of the Centre, Mr. Jethmalani said providing reservation for the OBCs was a fundamental feature of the Constitution, and it could not be attacked on the ground of violation of Article 15 (1) (prohibition of discrimination on grounds of religion, race, caste, etc).

“Caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on that ground,” the former Union Law Minister told a Constitution Bench headed by Chief Justice K.G. Balakrishnan.

“Caste is also a class”

“Caste is a class in which an innocent human is trapped by birth over which he has no control and from which he cannot freely exit because the exit is blocked by a cruel and arrogant society,” he said.

“Past injustice done to the backward classes for centuries is still continuing and that injustice is required to be remedied. What is wrong in providing reservation to them? The present generation must make some sacrifices for the injustice done by their ancestors.”

Ridiculing the petitioners’ contention that reservation would perpetuate the caste system, Mr. Jethmalani said that on the contrary, the OBC quota would help in removing the inferiority status of certain castes.

“To make the portals of higher education available to pupils of backward classes is to equip them for equal competition with the rest of the student world. This is a legitimate constitutional goal.”

“A complex concept”

Mr. Jethmalani said the OBC law could not be declared ultra vires the Constitution merely because backwardness was a complex concept and no precise definition was possible. “This is a field in which the apex court must scrupulously respect legislative judgment and adopt a policy of nearly total non-interference. In fact, this court is bound to assume that a state of facts existed at the time of enactment of the statute, which would validate the statute. The court may differ with the views of the Legislature, but it cannot set aside a law on that ground.”

On the contention that no OBC figure was available after the 1931 census, he said, “The total population of a country is irrelevant. What is relevant is the percentage of the backward classes in the total population. Even assuming that OBC population was only 36 per cent [as contended by some petitioners], what is provided is only 27 per cent, still short of 9 per cent to have proportional representation.”

The percentage of backward classes must have increased if at all and would not have gone down. Judicial management was not capable of identifying the backward classes, and the court must adopt a “standoff policy.”

Arguments will continue on Wednesday.


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