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The following press release by renowned Advocate, Mr. K M Vijayan, is an eyeopener to all of us. It tells us how the Right to Equality is violated within the constitutional framework by the proposed OBC Reservation bill. It tells us how to fight the legal battle through a PIL and hence is a MUST READ.
TO BE OR NOT TO BE
The recent announcement of 27% reservation to other backward classes (OBC) by the Hon’ble Minister for Human resources had once again raised the debate of “To be or not to be” the query that occurred to the mind of a character in William Shakespare’s play.
The debate whether reservation as it practised today in several States and the Country, raises certain fundamental issues of understanding of our Constitutional ethos in contrast to the political goals. Those questions leads to a logical conclusion that “Reservation” in the name Social Justice, factually tends to achieve caste justice (divisions) which our constitution wants to forbid.Â

The basic issues are;
(1) Whenever there is a crowd in the entry, queue is the only objective method of regulating the crowd.
(2) Wherever there is a competition there should naturally be a ranking (on merit).
(3) When the Constitution forbids discrimination on the basis of Caste, Religion, Place of Birth etc, can the special provisions enabling reservation for “Socially and Educationally Backward classes” (which in fact was done only on the basis of caste) can do the classification on the basis of caste alone.
(4) Whether a special provision enabling reservation by virtue of a Constitutional Amendment (Article 15(4) First Amendment and Article 15(5) 93rd Amendment) violates the basic structure of our Constitution, abrogating equality under Article 14, 15, 29(2) and right to carry on trade and profession under Article 19(1) of the Constitution?
(5) when Constitutional framers while enacting the Constitution in 1950 and the subsequent amendments in the Parliament, did not provide reservation, for OBCÂ to represent either in the Parliament or Legislative Assembly, what is the justification for the Parliament to amend the Constitution for “a caste representative justice” on admissions to the educational institution alone.
(6) When Constitutional 86th Amendment, amended Article 45 of the directive principles of State Policy in 2002, dispensing with the duty of the State even to provide compulsory school education upto the age of 14, (which was declared a fundamental right), what justification the State has on the matters of higher education, to provide for reservation?
(7) Is it not an irony in respect of two amendments of the Constitution in which, the amendment during 2002, under Article 45 the State avoided its responsibility in matters of school education, (which was declared to be a fundamental rights) and introduced a special provisions in 2005 under Article 15(5) to provide reservation even at the risk of abrogating the fundamental rights?
(8) There is no infirmity in providing reservation for an under privileged Section of the society, that badly needs to be lifted, the question is, should it be on the basis of caste?
(9) Is it Constitutionally valid, to provide reservation on the basis of caste, which had infact perpetuated caste differences in a modern society, against the object of establishing casteless society?
(10) Is it not possible of identify “Social Justice” on the basis of occupation instead of caste? If these issues referred above are understood in its right perspective, the solution to the questions will emerge in the line of constitutional objective.

(1) The common and simple rule in `entry’ is, wherever `there is a crowd there is queue’. If there are 100 persons waiting for boarding into a train, to avoid chaos, we follow the queue, which is the only way to regulate the crowd. We do not feel that following the queue is against social justice. We do not have any “queue” classified into OBC queue etc., which has no objective criteria.
(2) Similarly if 10 persons are running you have to give 1st, 2nd and third prize, we follow the rule of ranking on the pure merit. We do not have the claim of separate OBC ranking in a running race. Ranking on the basis of merit is the objective rule which is sine-qua-non.
(3) Issues 3 to 10 are totally related to Constitutional and legal issues a basic understanding of our Constitution since 1950 when it was adopted, upto 2005 when the 93rd amendments were made.

In 1950 when the Constitution was enacted there was no special provision for reservation like Article 15(4), which was brought in by way of 1st amendment in 1951. We had fundamental rights in Part III of the Constitution which ensures equality under Article 14 and discrimination against caste, religion etc. in matters of admission to educational institution owned and aided by State under Article 29(2).
However we had reservation in the matter election alone for a restricted period of 30 years as a transitory provision in respect of SC/ST alone. It is only because of, that we have MP and MLA Elections are fought on the basis of “reserved Constituencies”for SC/ST alone, other than OBCs. This transitory provision of reservation in election for 30 years for SC/ST, surprisingly continued for a further period 10 years on two occasions, now it is extended upto 2020. Since the issue is not relevant for this Article, except to say, that vested interest furthering a vote bank advantage, will become a permanent feature, even if it is constitutionally invalid.

In 1951 the Supreme Court had struck down in Champakkam Dorairajan Vs. State of Madras case, an existing reservation on the basis of “Caste” (communal G.O.) on the ground that it violated Article 13 and 29(2).
In the above said case, the Supreme Court considered the Constitutional validity of Communal G.O. of the year 1921, prevailing in the State of Tamilnadu providing reservation for admission to educational institution, on the basis of caste as unconstitutional and violated Article 29(2) and 13 of the Constitution of India.
In the said case, the Supreme Court held, that fundamental rights provided under Part III, cannot be abrogated by any law and to that extent it is void under Article 13. The Supreme Court also held that in as much as Article 29 (2) did not provide any reservation for backward classes of people as in the case of Article 16(4) relating to employment in public service, subject to efficiency and administration the said G.O. is unconstitutional.
To overcome the decision of the Supreme Court, Constitution Ist Amendment was made by Parliament, providing reservation for socially and educationally backward classes of citizen as a special provision, overriding the discrimination on the basis of caste in respect of admission to Educational Institution under Article 29(2).

Even though the above Amendment was a Constitutional Amendment, by way of Constitution Ist Amendment among other amendments relating to right to property, the Constitutional validity of Article 15(4) was not at all challenged and upheld, except to the extent of permissible percentage of reservation in Balaji Vs. State of Mysore case (1963).
In Kesavananda Barathy case (1973) when Supreme Court was considering the scope of Constitutional amendment, it held that the power of Parliament to amend the Constitution under Article 368 is restricted, in so far as it affects the basic structure of the Constitution.
In the subsequent Judgements of the Supreme Court it had categorically held that right to equality and the provisions contained in Part III are, all basic features of the Constitution.

It is worth mentioning that there was no challenge either to Article 15(4) or 15(5),on the ground that the Constitution Ist Amendment and 93rd Amendment, in so far as it violates the equality right under Article 14, 15 and 19 as well the right to admission without discrimination under Article 29(2) was put to judicial review, on the ground that the said amendment violates the basic structure of the Constitution. In future if anyone challenges Article 15(4) & (5) on those grounds, it will necessarily be held, that they violate the basic structure of our Constitution.
It is irony to note that when the Constitution was amended by Constitution 86th Amendment in 2002, which amended Article 45 of the Directive Principles of State Policy, withdrawing the Constitutional duty of providing compulsory and free school education upto the age of 14, which was available when the constitution was enacted. Surprisingly, in the year 2005 by Constitution 93rd Amendment an amendment was introduced, enabling the state to provide reservation both in the govt aided institutes as well the Private Educational Institution unfunded by the Government to provide reservation in the matters of admission to higher education.

The attitude of the State and the Union seems to be that on the one hand they are dispensing with their fundamental duty to provide, even the education at School level by Constitution 86th Amendment, on the other hand it introduces the obligation to provide reservation even in Private education at Higher Level Education. The State has no justification or constitutional right to insist the reservation in higher education as well as lower education, when it dispenses it
duty to provide, education as a sovereign function even at the school level. State cannot expect individuals to carry out State function, when it dispenses its duty.

It is also necessary to state that when the reservation for the under privileged Section of the Society is not prohibited under the Constitution, if the same is based on occupation instead of caste. There is no attempt at all, made by the State to identify the under privileged Section of the Society by occupation or other indexes, other than caste, that even without affecting merit. It is not at all impossible to classify such Section of deserving under privileged class of society on other basis, if our constitutional ethos, insist a casteless society. One can easily identify that, persons like class IV employees and carrying on odd jobs, hawkers, street dwellers, living under below poverty line for the purpose of affirmative actions to provide social justice.
Social Justice is understood as Caste Justice by the politicians as it serves the interest of vote banking to maintain caste justice as an element of polarisation.
There was no attempt by any politician to identify social justice on the basis of index; other than the caste, to remove the mark of caste. The back door method of perpetuating caste is by reservation. Social Justice can be achieved even without the name of caste. Though it is said, that the Indian Society is a caste society, it is not to be forgotten that the constitutional ethos wants to remove caste differences from the society, which should never be allowed to be defeated by any special provision, which will perpetuate caste system in the Country.

There is yet another aspect to the problem of representation of people either to Parliament or Assembly is never contemplated reservation for O.B.Cs by the law makers, who conveniently left open that issue, as it will affect the empowerment pattern in the existing election system. The unit that represent people never intend to introduce OBC reservation; on the contrary, reservation was introduced in the non-political arena like admission to Educational Institutions which should necessarily avoid caste discrimination under Article 29(2). The entire appeal for reservation seems to be against the constitutional mandate of Article 29(2), which cannot be amended at all violating the basic structure of the Constitution.
Even today there is no reservation in one post employment and super speciality medical courses as well as the Defence of India. If the logic of efficiency in administration and protecting pure merit ranking are the basic criteria of such exemptions, there should be no reason why the same should not be extended
to higher education which is fought on a tough competition, which cannot overlook queue and ranking by pure merit.

What follows from the above discussion are
(a) reservation on the basis of caste is not permissible under the Constitution of India, as it violates the basic structure of the Constitution of India, providing for equality and prohibiting discrimination on the basis of caste under Article 14 and 29(2) of the Constitution of India.
(b) However, affirmative actions to uplift such of those under privileged class of society on the basis of occupation or any other criteria other than caste is permissible, which again should be made on State funds by a programme of free and compulsory education for the under privileged from School level.
(c) Reservation cannot be extended to higher education or lower education, on the basis of caste identity and the Rule of queue and the rule of ranking by pure merit alone should be followed in making admission to educational institution.
(d) When the State dispenses its duty to provide even the fundamental right of school education upto the age of 14, it has no justification in making special provisions for Reservation in the matter of education particularly at higher education level. Providing 27 percent reservation for OBC is constitutionally invalid
(e) Reservation cannot be insisted in Private Institutions as they are not State under Article 12 and they have no constitutional obligation to do the State
functions. Nationalising education without compensation is not permitted in P.A. Inamdar case.
(f) Special provisions under the constitution cannot over ride the other fundamental right under Article 14, 15, 19 and 29(2).
(g) For the same reason, special provision cannot take away the fundamental right under Article 19 and discriminate the minority institution from the non-minority institution for the purpose of reservation, leaving the minority from the purview of Article 15(5) while insisting the same to non-minority educational institution, violating equal protection under Constitution.

disclaimer ; the above article is from the site ; http://www.savebrandindia.org.
the blogger does not take any responsibility.

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