Children of single mothers from other backward classes should be entitled to OBC certificates irrespective of the parents’ marital status, the Centre has told the Supreme Court, adding that it was for the states to initiate the process.
The response of the Centre came on a public interest litigation (PIL) filed by retired Municipal Corporation of Delhi (MCD) school teacher Santosh Kumari who questioned the Capital’s policy that allowed OBC certificates to be issued to any “paternal blood relative”.
The petition sought a nationwide policy to ensure such certificates are issued to children of single mothers belonging to OBC category, regardless of whether they are separated or divorced.
The response filed by the department of social justice and empowerment, Government of India, said, “The central government is of the view that any child born to an OBC parent, whether the parents are separated or divorced, should be entitled to an OBC caste certificate based on the credentials of either the OBC father or the OBC mother, depending on who has custody or is actively raising the child.”
The extension of such benefits, it added, would require a “comprehensive reevaluation of the criteria governing OBC classification, which are rooted in indicators of social and educational backwardness rather than merely lineage or parentage.”
Further, it stated that in cases where an OBC certificate is to be issued based on the mother’s credentials alone, “It must be clearly established that the child has been living with and has been brought up solely by the mother. Additionally, a preventive mechanism should be in place to prevent any potential misuse of this benefit.”
The petition was filed on January 11; on January 31, the top court took it up and issued notice to the Centre and the Delhi government. The Centre’s response — which also asked for the petition to be dismissed and urged the court to not pass any “hasty decisions” — came on June 9.
But on Monday, the apex court termed the plea “important” and said the matter required a detailed hearing.
“The present writ petition raises an important issue about issuance of OBC certificate to children of single mother wherein the mother belongs to the OBC,” said a bench of justices K V Viswanathan and N Kotiswar Singh.
The bench asked the petitioner, represented by advocate Dawneesh Shaktivats, to serve the petition to counsels of all states to ascertain their responses by July 22, the next date of hearing in the matter.
The court said that the issue needs consideration from all angles. “What if a single mother has an inter-caste marriage. We have to look at the surrounding circumstances…Let us see if states have issued guidelines in this regard, we can use it,” the bench added.
In India, OBC certificates are issued by the sub-divisional magistrates or similarly placed officers in every district and tehsil and the guidelines regulating the issuance of such documents — which entitle its holder to quotas in government jobs and education – varies from state to state.
There is no fixed procedure for children of single parents to get caste certificates. In cases involving an inter-caste marriage, children often face caste discrimination even if one parent is lower caste. Children of single SC mothers can get a certificate even if the father is not SC, but no such provision exists for OBC cases as of now.
In its affidavit, the Centre emphasised that the issuance of caste certificates and the identification of OBCs falls within the exclusive legislative and administrative domain of the state governments under Entry 41 of List Il (State List) in the Seventh Schedule of the Constitution of lndia.
Entry 41 relates to state public employment and includes all matters incidental to determining eligibility for public employment, including certification of social categories such as SEBCs [socio economically backward castes], SCs [scheduled castes], and STs [scheduled tribes] for reservation purposes.
This position was reinforced by the 105th Constitutional Amendment Act,2021, which amended Article 342A(3) and restored to the states the exclusive power to identify SEBCs (Socially and Educationally Backward Classes) for the purposes of state policies. This amendment was brought in after the Supreme Court in 2021 struck down the Maratha reservation law introduced by Maharashtra government on the ground that the power to identify SEBC belongs to the Union and not states.
“The power to issue OBC caste certificate lies with the sub-divisional magistrate (SDM) or similarly placed officers of each district and tehsil of a state. This court may issue guidelines or/and directions to the states and its officers to process the application of wards of single OBC mothers without document proof from the parental side,” the June 9 affidavit said.
The Centre was of the view that the issue about giving caste certificates to children of single OBC mothers does not appear to be a “widespread concern” affecting the OBC communities at large, though individual cases may arise.
Additional solicitor general (ASG) SD Sanjay, who appeared for Centre along with advocate Amit Sharma, said that the issuance of SC certificates to children of single mothers was based on the observations made by the Supreme Court in a 2012 decision in Rameshbhai Dabhai Naika vs State of Gujarat, but no similar judicial precedent exist concerning children of single OBC mothers.
Further, the affidavit revealed that OBC stands on a different footing as reservations under this category are subject to the creamy layer restrictions, which is not the case with reservation for SC/ST.
The Centre also objected to the maintainability of the petition filed under Article 32 for enforcement of fundamental rights claiming that the petitioner is not an aggrieved party and issuing caste certificates is part of executive or statutory policy and not directly from the Constitution.
“There is no fundamental right to invoke Article 32 of the Constitution in the issuance of a caste certificate when there are no fundamental rights violated… Since it (affirmative action policies under the Constitution) flows from executive or statutory policy and not the Constitution directly, no violation of a fundamental right arises merely due to lack of a nation-wide policy to issue caste certificate to wards of single OBC mothers,” the Centre said.
The government urged the court not to pass any hasty order in this regard as in the context of OBC reservation, the application of the creamy layer principle – which includes well-to-do members of the OBC community from availing reservations – will complicate any blanket extension of benefits in the OBC category. “Any policy shift in this regard must come from a deliberate legislative or executive process, rather than ad hoc judicial directions, particularly in the absence of empirical data justifying such inclusion,” the response said.
Further, the entitlement to OBC status for children of single mothers will involve broader socio-legal and policy implications. “Any decision taken in haste at this stage may result in inconsistent or fragmented implementation, contrary to the objective of ensuring a uniform and equitable framework for OBC recognition,” it added.