Illogical to ask for OBC Data ?
Mr V. Venkatesan has a post up at Law and Other Things. He mentions a set of four points that leads him to conclude that the stay was unjustified. I am not sure if this is the same V. Venkatesan who is the legal correspondent for The Hindu and Frontline newspaper.
Some useful links first.
- Link to the latest judgement granting the stay
- Link to Indira Sawhney I
- Link to Indira Sawhney II (and here)
Let us see his points one by one.
The court prima facie assumes that inclusion of castes in the OBC list has been mechanical, and done without adequate relevant data. This is a wrong assumption. The inclusion of castes has been going on for many years in various States, on a variety of criteria. The Mandal Commission followed its own criteria, (not on the basis of 1931 census) including representation from the claimant castes, field visits by the Members, and the States’ lists.
The fact that the inclusion has been going on in various states for many years does not materially affect the contention that the inclusion of such castes is mechanical. It is true that the Mandal list was accepted in Indira Sawhney, it does not follow that it will be the case for ever. Almost all judges in Indira Sawhney stressed the absolute requirement for data and that judicial challenge is available as a remedy. The court reposed faith in the government that a proper application of mind would take place with these lists.
the existence of circumstances relevant to the formation of opinions is a sine qua non. If the opinion suffers from the vice of non-application of mind or formulation of collateral grounds or beyond the scope of statute, or irrelevant and extraneous material, then that opinion is challengeable
Jus. Pandian in Indira Sawhney
On behalf of himself and three others, Jeevan Reddy, J. pointed out (para 798 SCC) that opinion in regard to backwardness and
inadequate representation must be based on relevant material.
Why doesnt private citizen X approach the NCBC instead of the courts ?
Simple answer, the judicial review option is available. Complex answer, it is impossible for a private individual or group to collect such daunting social data that would result in a successful appeal against over-inclusion.
Mr Venkatasan asks,
Instead of asking the Government this question, the Court must have asked the petitioners, to show that specific inclusions of castes in the OBC list were without any data, and this was not seriously examined by the NCBC, when they complained to it. The petitioners are apparently lazy to carry out such an exercise themselves, and therefore, suggested a fresh survey.
So lets get this straight. Does anyone really think private citizens have the power to carry out a large scale sociological survey to establish social and educational backwardness ? Do you really think YFE can survey the literacy rate of targeted social groups (castes) , the graduation rate , land ownership, etc ? Do you think anyone is going to selectively target caste XYZ for such an examination ?
Anyway, the NCBC was to review its list every 10 years. Come 2003 ..
The Court does not want to admit that such an acceptable mechanism already exists in the form of the NCBC, which is entrusted with the task of revision, if necessary. The NCBC only found this revision exercise premature in 2003.
I have heard this one before. While we may accept that revision of caste list is premature – but why not measure ? Measurement need not be followed by revision. For the government measuring is as easy as counting successful job applicants caste certificates – and tabulating which castes are better poised to avail such benefits.
If the government comes up with fresh evidence, and the Court upholds the Act, will it then compensate the OBCs who lost one academic year, because of its faulty stay of S.6 of the Act?
Absolutely not. For the same reason 16 years of meritorious open category as well as economically poor OBC students will not be compensated if the Supreme Court strikes down the state of Tamilnadus creamy layer inclusion. The OBCs only have conditional admission today. It is conditional on the instrument that enabled such admission in the first place passing constitutional tests.
My point in raising the issue of governance coming to a standstill is to show how illogical the requirement of data collection is. Will anyone suggest data collection to show that the SCs and STs continue to be deprived or that the castes listed as SCs and STs still fulfil the criteria for their inclusion?
Just search for SC on this blog to get about 10 answers to that question. It is not necessary to collect SC/ST data, it may be desirable but not necessary. SCs are not given benefits on the basis of their social and educational backwardness. Assuming you collected SC data, and found that some SC groups were doing really well. It would still mean nothing because that SC group’s benefits are not contingent on it being backward in any way. The constitution does not grant SEBCs parity with SCs.
The reservations were first introduced in 1902 and 1921 respectively in princely states of Kolhapur and Mysore, in response to the local movements against existing caste based monopoly. Those princely states did not go about collecting data, but responded immediately to the demands, in order to prevent social unrest.
I am not sure if you are correct. See Justice L.C. Miller committee (1918-1920 Mysore) and O.H.B Starke Committee (1928 – Bombay). See https://realitycheck.wordpress.com/2006/06/02/hard-data-is-our-best-friend-1/
The case will be heard on merits when the government submits data. Until then, this stay is welcome.
There must be a realization that such data cannot be hidden. What happens the next time around ? The next time is going to be – OBC quota in private colleges. The United States makes available state/county wise breakup of African American/Hispanic/ Asian professionals, doctors, and students to monitor their affirmative action program. Why cant we atleast publish national level figures ? Is the working of our primary social justice program a national secret ?