New Delhi, May 8
The UPA government has something to cheer about on the OBC quota issue for the first time with the Supreme Court today giving a positive indication on considering its plea for referring the matter to a Constitution Bench and directed solicitor general and senior advocates appearing from both the sides to formulate mutually agreed questions of law needed to be answered by the court.

After suffering a series of setbacks with the court staying the implementation of 27 per cent reservation for OBCs in the central education institutions (CEIs) and then rejecting Centre’s application for vacating the stay, today’s development was the first positive signal to the government from the court on the issue as entire focus of the UPA and its allies was to get the matter somehow referred to a larger Bench.

“Give us the fundamental questions involved by formulating them by tomorrow. We will try to find out what is the best course available,” a Bench of Justices Arijit Pasayat and Lokeshwar Singh Panta, which had refused to vacate the interim stay on the implementation OBC reservation in admission in CEIs from this year, told a battery of senior advocate appearing from both the sides.

While the UPA fielded senior advocates Ram Jethmalani and former attorney general K. Prasaran along with solicitor general G.E. Vahanvati to make a case for referring to the Constitution Bench, the government’s affidavit came in for minute scrutiny with senior advocate Harish Salve, appearing for anti-reservation students, digging various loopholes in it on the important questions of law related to the reservation policy.

This left the solicitor general, Jethmalani and Parasaran with little option but to admit that the “flaws” in the affidavit should not be treated as an “obstacle” in referring the case to a Constitution Bench as it still involved a “great public interest” and other substantial questions of law.

Salve pointed out that the government in its reply had taken a clear stand that the reservation issue had got finality with the 9-judge Constitution Bench ruling in the Mandal Commission case and 5-judge Bench ruling in Nagraj case and therefore, the petitions against the new OBC Reservation Act, 2006, should be thrown out. “But now the same government has come up with a plea that the reservation issue need to be examined by a Fonstitution Bench… it is very strange,” he said.

However, he said if the government after admitting that the “self defeating” affidavit should not be construed as an obstacle in referring the case to the Constitution Bench, then it was altogether a different issue and it was up to the court to decide what course of action needed to be taken.

At this Parasaran, appearing for the DMK-led Tamil Nadu government, supporting the OBC quota, said, “The self defeating affidavit is not a reason for not considering the matter for referring to the Constitution Bench.”

Jethmalani, appearing for Lalu Prasad Yadav’s party RJD, making a common cause with the DMK and the UPA government, said, “Keeping in view the importance of the question involved and interests of 25 crore (OBC) population, the issue should be heard by as large a Bench as the court can afford”.

Earlier, the solicitor general detailed the grounds that according to him made a case for referring to the Constitution Bench. These included the testing of the validity of 93rd Constitution amendment paving the way for the passage of the OBC Reservation Act, the question of data for determining the OBC population, whether the creamy layer was applicable for admissions also and the demand of the general category students for increasing the number of seats in CEIs for them also. “It is a highly emotive issue for people from both the sides and that itself makes a case for hearing by a larger Bench,” Vahanvati said.