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Flaws in the Madras High Court Order

October 27, 2008

Crucial Points of the Madras High Court Order on conduct of a caste-based census
(1) By ordering that "the percentage of SC, ST and OBC reservation shall be proportionately   increased on the basis of the census", isn't the High Court (an inferior court) overruling the Supreme Court which has repeatedly emphasised that reservation quota should not exceed 50%?
(2) Again when reservation itself is not mandatory, where from does the question of providing/ ordering proportionate reservation arise?
(3) Who needs reservation is to be decided on the basis of empirical evidence. Reservation is not to be provided merely because x number of people belong to SC/ST. Who is backward is to be determined on the basis of empirical evidence not merely because someone belongs to some caste. Nearly a century ago, the 'non-brahmins' (present day 'backwards') of Tamil Nadu claimed that Brahmins were taking a disproportionate number of jobs. Today the situation is emphatically reverse. Hence by the same logic, it is the Brahmins with less than 1% jobs in TN State Government who need to be categorised as backward/disadvantage/marginalised.
(4) As per Madras High Court order caste-based census is to "achieve the goal of social justice in its true sense". As per Preamble to the Constitution, Social Justice is to be secured for All. Social Justice is not exclusively reserved for the 'reserved'! There cannot be any presumption that one set of people are undeserving of Social Justice.
(5) We have seen what Social Justice in the true sense has done to the Brahmins in Tamil Nadu. Presumably this is to be done all over India to the rest of the NR Hindus also.
(6) The order delivered by the Madras High Court has no relevance to the petition filed by Doctor E Sayed Ali, veterinary surgeon belonging to Lakshwadeep. This order should be treated at best as OBITER DICTA.
(7) The Madras High Court order has held the very appointment of the Doctor under ST quota when there did not exist any STs in Pondicherry as illegal. How can then Delhi have ST quota, that too 7.5% when there are no STs in Delhi?
HC directs Centre to take up caste-wise census TNN 26 Oct 2008,
CHENNAI: Take up a caste-wise census in the country and complete the exercise in a time-bound manner. The percentage of SC, ST and OBC reservation shall be proportionately increased on the basis of the census. This is the directive the Madras high court gave to the Centre on Friday. Passing orders on a writ petition, a division bench comprising justice Elipe Dharma Rao and justice S Tamilvanan went on to observe that a caste-wise census is the need of the hour and it will help the government to "achieve the goal of social justice in its true sense". "When it was an admitted fact that after 1931 there had never been any caste-wise enumeration or tabulation, and when there could not be any dispute that there was increase in the population of SC, ST and OBCs manifold, the percentage of reservation fixed on the basis of population in 1931 had to be proportionately increased by conducting a caste-wise census," the bench observed. The bench made these observations while passing orders on a petition filed by E Sayed Ali. A veterinary surgeon belonging to Lakshwadeep, Ali was appointed veterinary assistant surgeon under the ST quota over two decades ago. He filed the petition seeking promotion to the post of joint director, also reserved for an ST candidate. During hearing, the court was informed that Puducherry had no ST population. The bench said the very appointment of the petitioner under ST quota was illegal. However, in view of the fact that he was in service for over two decades his continuation shall be protected by the government, it said.

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