“Are you not creating inequality among equals by raising the seats only for the OBCs and not the general category students,” the court asked additional solicitor-general (ASG) Gopal Subramaniam, appearing for the government.

The court also asked the ASG how the government had refused to exclude the “creamy layer” from the 27 per cent reservation for OBCs in these institutions even when there was no data available with the Centre about the actual percentage of their population.

The court was not convinced with the government’s stand that the Mandal Commission recommendations based on the 1931 caste-based census was relied upon to determine the 27 per cent quota. The Bench said the 1931 census data had become irrelevant.

The court said if the “creamy layer” formula was applicable to the OBCs in government jobs as per the provisions of Article 16(4) of the Constitution, why the same should not be applicable to them in admissions to education institutions under Article 15. The court grilled the government counsel on the aspects of “economic backwardness” vis-à-vis “social and educational backwardness”, pointing out that the backwardness could not necessarily be determined on the basis of a class, which might be educationally backward but financially well off.

However, it made clear that in this context that it was not referring to the Scheduled Castes (SCs) and Schedule Tribes (STs) for whom an express provision had been made in the Constitution because of their caste-based oppression for centuries, but the same caste factor could not be applied to the OBCs,

A battery of senior advocates, led by Fali S. Nariman and P.P. Rao, appearing for various petitioners, organisations of anti-quota students and doctors of AIIMS and Maulana Azad Medical College, sought stay on the implementation of the new Act. However, the court was not convinced. It wanted to know how would the Government ensure that the rights of the general category candidates in the increased seats were not adversely affected.