Document Fragment View

Matching Fragments

4. Learned counsel for the petitioners, however, stated that the complex issues relating to the scope and ambit of Article 15(5) of the Constitution and the validity of 93rd Constitution Amendment Act, 2005 are involved. It is pointed out that behind the so called anxiety which is nothing but a fagade, to provide better educational facilities for socially and educationally backward classes, the objective is to play a political game and what is commonly accepted as "Vote politics". The objective is not so much for social empowerment as creating a vote bank. In the name of social empowerment, what is intended to be done is to create a caste divide which shall have catastrophic implications. The object is not social empowerment and/or to extend help to the deprived. If that was really so, the stress should have been on social and economic backwardness. If any class needs protection, it is the socially and economically backward class of people. It is also pointed out that the framers of the Constitution had indicated a specific period for reservation. They had felt that the period is good enough to take care of any injustice they may have been hypothetically meted out to socially and educationally backward castes. But with oblique motives the period is being extended. It is submitted that the same cannot be the objective of the Constitution. It has also been submitted that there is no scope for reservation in higher education and the Act empowers reservation in educational institutions imparting higher education and that itself is unconstitutional. Further, the basic data for identifying the "backward classes" has not yet been placed before this Court though at the threshold the inadequacy and non-availability of such data was highlighted by this Court. It is submitted that this Court in Jagdish Negi, President, Uttarakhand Jan Morcha and Anr. V. State of U.P. and Anr. (1997 (7) SCC 203) held that the State cannot be bound in perpetuity to treat some classes of citizens for all time as socially and educationally backward classes of citizens. In these circumstances, it is submitted that the writ petitions should be disposed of on the material as existing presently.

(1) Challenge to the Constitution 93rd Amendment Act, 2005 by which Article 15(5) has been inserted in Part III of the Constitution.
(2) Challenge to the policy of reservation as a form of "affirmative action".
(3) Challenge to the "caste based" reservation or the "caste based" affirmative action.
(4) Challenge to the Act.

8. The basic issues which need to be considered by the larger Bench, are as follows:

93rd Constitution Amendment Act, 2005 (1) Whether the 93rd Constitution Amendment Act, 2005 and Article 15(5) are unconstitutional as being violative of the basic structure of the Constitution? (2) If the Amendment is valid, how is it to be interpreted and implemented?
(3) Whether the 93rd Amendment insofar as it empowers the government to make special provisions by way of reservations in educational institutions (including private educational institutions) is violative of the basic structure of the Constitution?
(4) Whether the 93rd Amendment confers on the State an unbridled power to make special provisions for "socially and educationally backward classes", without indicating the circumstances when such provision may be made, and without imposing any limit either on the contents or duration of such special provisions and is, therefore, wholly destructive of the right of equality of the citizens and thereby violative of basic structure? (5) Whether depriving the protection of Art. 19(1)(g) to non-minority institutions (while excluding minority institutions from Art. 15(5)), after the decision in P.A. Inamdar v. State of Maharashtra (2005 (6) SCC 537) which held that non-minority institutions enjoyed a similar protection, upsets the delicate balance of the Constitution, and is inconsistent inter-alia with the principles of secularism and thereby is violative of the basic structure?