Exactly a year ago, Human Resource Development Minister Arjun Singh had forced the issue in his party and the government by floating the proposal of OBC quotas in higher educational institutions at the sidelines of an NCERT function. Prime Minister Manmohan Singh was said to have been in favour of a more calibrated and nuanced approach, something which the Supreme Court prescribed today. But with the apex court’s stay on the new law, the options before his Government are limited.While HRD Ministry officials were in a huddle until late tonight, official sources told The Indian Express that the Prime Minister is not in favour of a head-on confrontation with the judiciary. But with the crucial UP polls just days away, the Government also needs to be seen as pro-actively responding to the SC’s rebuff.Sources involved in discussions said the government will most likely approach the Court either for vacation of the stay or a review/modification of the stay order. Before that, the government, it is learnt, is most likely to go to the Cabinet and possibly call an all-party meeting, a demand already raised by some political parties today. The legal argument the Government is working on is that the interim order is a “constitutional challenge” as a two-judge bench, by staying a Constitutional amendment, has over-ruled the nine-judge bench order in the landmark Indira Sawhney case. Some of the key points that the Government is likely to raise while asking for a review or a vacation of the stay:• In 1992, the nine-judge constitution bench in the Indira Sawhney case agreed to what constituted data for socially and educationally backward classes, which was not just the 1931 census but based on a further examination of socially and educationally backward classes by the Second Backward Classes Commission (Mandal Commission). “They said it was a basis that was okay for employment, how can that not be okay for access to higher educational institutions?” said legal expert Rajeev Dhawan. “Either we take constitutional judgements seriously, or go on chasing red herrings.”• The SC’s interim order today says that the Centre, by increasing seats and capacity only for the purpose of reservation. is “creating unequals among equals.” Constitutional experts cite what Justice P B Sawant wrote as part of the Mandal bench: “The right to equality enshrined in our Constitution is not merely a formal right or a vacuous declaration. It is a positive right, and the State is under an obligation to undertake measures to make it real and effectual. “n Also, the order asks the Centre to examine “a system other than quotas.” Incidentally, in the Mandal judgment, Justice Pandian had said: “Not a single decision of this Court has cast slightest shadow of doubt on the constitutional validity of reservation. The action of the Government in making provision for the reservation of appointments or posts in favour of any ‘backward class of citizens’ is a matter of policy of the Government. What is best for the ‘backward class’ and in what manner the policy should be formulated and implemented bearing in mind the object to be achieved by such reservation is a matter for decision exclusively within the province of the Government and such matters do not ordinarily attract the power of judicial review or judicial interference except on the grounds which are well settled by a catena of decisions of this Court”. There is the possibility of an ordinance to amend the law but that is considered remote given the confrontationist signal that it might send. When HRD Minister Arjun Singh was asked whether an ordinance was one of the options, he told The Indian Express: “My first reaction is, I don’t think so. But let’s see. I will have to talk to our lawyer before deciding the future course of action.” Within an hour of the order, Singh tried to put up a brave facade, saying “it wasn’t a setback.” He held quick discussions with key officials, including HRD Secretary R P Agarwal and Higher Education joint secretary Sunil Kumar. The consensus was that the Government was committed to implementing the law and that it would contest the order.And, significantly, the order will not cast a shadow on the “54% expansion of seats” in higher-education institutions, although top IIM and IIT officials, when contacted, said they were awaiting instructions.For IIMs, the admission process for the coming academic session is in its last phase as interviews and group discussions are over, and the final list is being prepared. For the IITs, the entrance exam is scheduled for April 8. Veerappa Moily, the Oversight committee chairman, described this judgment as “unfortunate”, and said that the implementation of expansion plan, in phases, was “very much on track” and would not get affected by today’s decision since the government would have to implement it from this year.
