Moving the Supreme Court to seek vacation of its stay on implementation of the 27 per cent reservation for OBCs in higher education institutions, the Government today sought setting up of a five-member Constitution Bench to hear the matter.

Filing a “clarification” application a fortnight after the Supreme Court stay order, the Government also opposed exclusion of the “creamy layer” from the benefit of reservation.

The Government maintained that the decision of the nine-judge Constitution Bench in the Indra Sawhney case (Mandal case) upholding reservation for OBCs “is binding on all concerned, including the petitioners, the Government as well as a two-member Bench of this Honourable Court.”

Seeking vacation of the March 29 interim order, the Government said the order overlooks the ‘impact test’ in relation to a vast section of the population which is already suffering from the stigma of backwardness, centuries of oppression, serious denial of access to opportunities in education and, thereafter, entry into the mainstream of society.

The Government said the order has the consequence of negating legislative intervention to give effect to Constitutional assurances and entitlements, executive flexibility and choices in policy making and implementation. According to the Government, the order appears to sustain a challenge which seeks to scrutinize the adequacy or otherwise of the material underlying the Act. “...such an inquiry departs from the well established principles in regard to judicial review of legislation,” it said.

The petition said that according to one view in certain constituents of the Union Government, the March 29 order may not be construed as an order of stay but only an advice to the government.

... contd.