Verdict on OBC quotas
Praful Bidwai
The Supreme Court of India has opened a can of worms by pronouncing a verdict
against reservations for the Other Backward Classes (OBCs) in Central
institutions of higher learning. The judgment has major long-term implications
and will further widen the growing divide between the higher judiciary and the
executive as well as the legislature. It has rankled political parties
virtually across the board and will be bitterly contested.
The judgment, on interim applications pertaining to a batch of petitions
challenging OBC reservations, comes just when the Central institutions were
preparing to raise the number of admission in a phased manner. By setting the
final hearing for August, the interim order ensures that the admissions process
for the next academic year will exclude OBCs. The government must do all it can
to get the stay vacated. It has allocated as much as Rs 3,200 crore to various
Central institutions so they can expand the number of seats.
The proposed seat increase, by a whopping 54 per cent, was calculated precisely
to minimise the disadvantage that general category (largely upper-caste)
students would suffer on account of OBC reservations. This represented an
attempt by the Centre to assuage the anti-reservation sentiment through the
Veerappa Moily oversight committee established last year. Even that effort
now stands negated.
The upper castes see the judgment as a vindication of their stand in favour of
merit and against affirmative action itself. Votaries of affirmative action,
including OBCs and Dalits, view it as an assault on their aspirations and
entitlements to educational and social opportunities.
A major contradiction lies at the heart of the judgment. A two-judge bench,
comprised Justices Arijit Pasayat and Lokeshwar Singh Panta, has ruled against
the rationale of a verdict of a 9-judge bench in the 1992 Indra Sawhney case,
which upheld OBC reservations in Central government jobs. Logically, whats
sauce for the goose (government jobs) should be sauce for the gander
(university admissions) too. But the Supreme Court has declared that quotas for
OBCs mean treating unequals as equals.
The judgment comes on top of differing legal opinions handed down by various
Supreme Court benches, and efforts to play down the significance of caste-based
discrimination. This is at odds with the evolving global thinking, as reflected
in the United Nations Convention on the Elimination of All Forms of Racial
Discrimination, which India has ratified. In February, the Expert Committee of
the Convention held that discrimination based on descent include
discrimination...based on forms of social stratification such as caste and
hence that the Convention applies to India. If India is committed to social
cohesion and eliminating casteist and prejudice, it should honour the
Convention and systematically promote affirmative action.
However, the Pasayat-Panta judgment minimises the importance of affirmative
action. Essentially, it bases itself on two arguments. First, there are varying
estimates of the current proportion of OBCs in Indias total population. The
last census enumeration of the backward castes took place in 1931. In the
absence of an objective determination of this proportion, the Centre should
not have reserved a 27 per cent quota for OBCs.
The second argument is much more far-reaching. It holds that creating quotas
for different social categories is itself invalid, and recommends that a
different form of preferential treatment other than quotas could be used. This
militates against the logic of reservationsnot just for OBCs, but for Dalits
(Scheduled Castes) and Adivasis (Scheduled Tribes) too, which is integral to
the Constitution. But the Court balks at this and upholds SC-ST reservations.
How valid is the talk of indeterminacy of or uncertainty about the OBCs
proportion in the population and their under-representation in educational
institutions? Opponents of reservations claim that the 1931 census is
outdatedwhich it isand that the post-2000 estimates of the OBC population by
the National Sample Survey (NSS) and the National Family Health Survey
contradict Mandal Commissions numbers of 1980.
However, the Mandal Commission did not base itself solely on the 1931 census,
the last to enumerate castes. Bindeshwari Prasad Mandal constituted a 15-member
experts (social scientists) committee under the chairmanship of eminent
sociologists MN Srinivas to devise ways of identifying OBCs. It organised
broad-based consultations and seminars and prepared four schedules, two each
for rural and urban areas.
All States were given these for conducting sample surveys in each district of
India. The Commission sent out questionnaires to all the States and 30 Central
ministries, and published notices in national dailies and regional papers
inviting public responses. The National Informatics Centre analysed the
information. The experts committee spelt out 11 different criteria of
backwardness, including caste, education and income, dependence on manual
labour, early age of marriage, school dropout rates, low work-participation
rates, etc. Low income, for instance, was determined on the criterion that the
value of family assets and number of families living in kuccha houses is 25 per
cent below the State average. It also meant that a drinking water source would
be beyond half-a-kilometre for more than 50 per cent of a community. Social
indicators were given three points each; educational indicators two points; and
economic indicators one point each.
On this basis, the Mandal Commission identified 3,743 groups as OBCs. To argue
that the 1931 census was the main basis for its report is a travesty of the
truth. The Commission also made a dozen recommendations, of which reservation
of 27 per cent of job/seats was only one. The others included land reform,
special programmes for educational and economic upliftment, etc. The government
largely ignored these.
Now, what about the varying NSS estimates that OBCs are between 32 and 42 per
cent of the population? Or the NFHS view that they form only 29.8 per cent? The
NSS is simply not equipped to survey castesas distinct from income and
consumption. Thats a function that only a group of demographers, sociologists,
political scientists and historians can perform on the basis of detailed
district-wise data. (Castes vary from district to district).
Lacking expertise, the NSS used the self-ascription method. This is crude and
unreliable: people will describe their caste according to how they think
theyll benefit from it. Besides, the NSS lumped together upper-caste Hindus
and Muslims in one categorywhich makes no sense, as the Sachar Committee has
shown. Neither its data, nor the NFHS estimate, can be considered valid.
At any rate, even these estimates are well above the 27 per cent quota. Its
not denied that OBCs are severely under-represented in higher educational
institutions. Given the reality of social discrimination, there is a strong
case for affirmative action in the OBCs favour, and an even stronger one for
Dalits and Adivasis, who face exclusion, social boycotts and disgraceful forms
of victimisation on account of descent.
The second argument of the latest judgment derives primarily from a
controversial verdict of the United States Supreme Court in the Grutter v.
Bollinger case, pertaining to admission for a Black student to the University
of Michigan Law School. The US Court upheld the admission, but only because it
was narrowly tailored not to discriminate against those who dont belong to
racial or ethnic minorities. To be narrowly tailored, a race-conscious
admissions programme cannot insulate each category of applicants with certain
desired qualifications from competition with all other applicants.
If India aspires to a degree of social cohesion and to build a
caring-and-sharing society, it must take affirmative action. This may or may
not take the form of reservations or quotas. These are, admittedly, blunt
instruments. But that cannot be an argument for opposing affirmative action
itselfas many upper-caste people do. Its possible to look for other
supplementary approaches, over and above quotas, including special points for a
family history of illiteracy, poor schooling, origin in a backward region, etc.
But we can evolve such a system only if we first accept affirmative action.
Thats where the rub lies. The upper castes have never fully reconciled
themselves to affirmative action and to sharing power. The latest judgment has
reinforced their resistance.
Assam Tribune Editorial 12.04.07
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