Jats put in OBC as per Constitutional mandate: Centre to Supreme Court

New Delhi: Government has said it has the powers under the Constitution to include Jats in the central list of Other Backward Classes (OBC) and sought a review of Supreme Court's decision to scrap quota for the community.

In its review petition, the NDA government, which strongly supported the erstwhile UPA regime on the issue, also submitted that the apex court "committed an error" in holding that the National Commission for Backward Classes' (NCBC) opinion would be binding on it. "The power to make provisions for reservation flows from Article 16(4) of the Constitution of India. This power is not dependent upon the advice of NCBC.  "The Union of India, notwithstanding the provisions of the NCBC Act, possesses/retains this power to add or subtract from the central list of other backward classes," the review plea, settled by Additional Solicitor General Maninder Singh, said.

The Centre had moved the court days after a Jat delegation met Prime Minister Narendra Modi, who assured the community leaders that his regime would try to find a solution within the legal framework. Earlier, a bench of justices Ranjan Gogoi and RF Nariman, in its verdict, had referred to various constitutional schemes and the NCBC report and said that the finding of the OBC panel that Jats do not deserve to be given quota benefits was "supported by good and acceptable reasons".

The court had also said the NCBC had considered reports of state backward classes panels and other literature on the subject before recommending that Jats should not be included in the list of OBCs.

Seeking a review of the apex court's March 17 verdict setting aside a 2014 notification to include Jats in OBC list in nine states, the Centre said that its constitutional power can neither be "dependent" nor be curtailed on the advice of NCBC.

The Centre also claimed that NCBC "vacillated" on the issue of including Jats in OBC for over two years as it had initially kept waiting for the Caste Census Survey conducted by the Registrar General of India and thereafter, decided to approach the Indian Council of Social Science Research (ICSSR) for a full survey", at another subsequent occasion, NCBC decided to opt for a 2% sample survey.

Having vacillated from one view to the other and ultimately decided to opt for a 2% sample survey, the NCBC did not do anything further for a period of more than one year," the plea said.

When the government in December 2013 "reminded" NCBC of this matter, the panel decided to entrust the ICSSR to carry out a study based on the available literature, books and documents. The decision to include Jats in Central OBC list was taken after various state panels furnished reports favouring the inclusion, the government's review plea said.

Opposing the opinion of NCBC, based on whose findings the apex court had set aside the notification, the Centre said the OBC panel had arrived at its view "without having any independent expertise" of its own. It contended that NCBC only sat over ICSSR's report as an appellate authority and proceeded to "castigate and disregard the conclusions arrived at by ICSSR".

The government said ICSSR had in its report submitted an inter-state comparison of the community in nine states. "On the basis of the limited comparable data, ICSSR had also observed that it had appeared to it that the situation of Jats with respect to ownership of land, educational level and representation in the government service is bad/worse in the states of Bihar, Gujarat, Himachal Pradesh when compared to the status of Jats in Delhi, Haryana, Rajasthan, Uttar Pradesh and Madhya Pradesh," it said. "...the NCBC which was expected to carry out such an exercise on its own, vacillates from one decision to another for the period from 2011 to 2013 and eventually chooses to assign the task to ICSSR and when a well-considered report of ICSSR becomes available to it - without having any independent expertise, it sits over the report as an appellate authority and proceeds to castigate and disregard the conclusions arrived at by ICSSR," the petition also said.

The review plea said the court committed "an error in putting its seal of approval on the patently erroneous conclusions of NCBC with reference to the findings arrived at by ICSSR".

"The findings of ICSSR or Union of India are based upon authentic data and on the other hand, there was no other fresh data or material which was additionally available to NCBC in rejecting the conclusions arrived at by ICSSR," it said.

The government said the test laid down by the apex court in the Mandal judgement for determination of "social, educational and economic backwardness" of Jats had been complied with. It also contended that the apex court "committed an error" when it granted approval "to the erroneous observations of NCBC against taking an affirmative action by Union of India on the ground that the Supreme Court has held that such an affirmative action can only be with regard to social backwardness and not on account of educational backwardness".

The government said it is educational backwardness which leads to and signifies social backwardness and "there would not be any permissibility to divorce entirely the two concepts". "These are not mutually exclusive concepts but in fact are mutually inclusive concepts," it said and contended that the March 17 judgement of the apex court "has resulted into miscarriage of justice".

The apex court had on March 17 set aside the notification that had enabled Jats to claim reservation in nine states, had said that "possible wrong inclusions" cannot be the basis of further inclusion, and reservation should be given only to the "most distressed".

The Jats were included in the central list OBCs for getting reservation in states like Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand.