april 19, 2008
After the OBC Judgment
It is now time to interrogate orthodoxies on both sides of the reservations debate.
I
nitial reactions to the Supreme Court’s judgment upholding
reservations for the Other Backward Classes (OBCs) in central
institutions of higher education may have missed its real
signi­ficance. The effusive reaction of the political establishment
– the human resource development minister was quick to call the
verdict “historic” – reflected the sense of relief at being saved the
embarrassment of defeat, the difficulty of having to take a
position on politically delicate questions and the prospect of
another confrontation with the judiciary. The positive reaction of
the anti-reservationists, including much of the mainstream
media, was clearly an attempt to salvage some honour from the
unanimous refusal of the apex court to support their cause on
the  Central Educational Institutions (Reservation in Admission)
Act of 2006. This unusual welcome from opposite camps has
less   to do with the verdict than with the difficult dilemmas
facing both  supporters and opponents of affirmative action in
contemporary India.
Unlike other judgments that have made significant contribu-
tions to the rich Indian jurisprudence on equality, the four judg-
ments in the Ashok Kumar Thakur vs the Union of India and Others
case may not deserve adjectives like “historic”. In fact, the latest
judgment falls squarely within the framework of the nine-judge
constitutional bench ruling in the Indira Sawhney vs Union of
India case. In line with the Supreme Court’s long-standing inter-
pretation of the constitutional provisions on equality, the latest
ruling reiterates that the fundamental right to equality is com-
patible with schemes like reservation that confer special benefits
on disadvantaged groups; that the government can use its discre-
tion to identify such groups; and that caste itself can be used as a
criterion for identification.
In this sense, the apex court has only restated existing judicial
wisdom on reservations for the “socially and economically back-
ward classes” (SEBCs). But in doing so, the verdict creates space
for interrogating orthodoxies and vested interests on both sides
of the reservation debate. It may thus play an important role in
nudging OBC leaders to confront challenges that they have tend-
ed to shy away from. Perhaps the most fundamental of these is
the question of the relationship between caste and class. Does
upward mobility in class terms fully neutralise caste-related dis-
advantage and discrimination? What is the level of prosperity or
poverty beyond which caste makes no difference to life chances?
Economic & Political Weekly  EPW   april 19, 2008
The much-hyped controversy around the “creamy layer” is but
one way of debating such questions. However, the latest judg-
ment offers nothing new on this issue: the creamy layer formula
was established in the Indira Sawhney ruling and could have
been addressed in the proposed law but for the overconfidence of
the pro-reservation lobby. The court’s formulation may not be
very elegant, but the principle is quite clear: when it comes to the
OBCs, caste is not a sufficient criterion for identification of benefi-
ciaries. The courts have begun to recognise that multiple axes of
disadvantage characterise our society and they have started
deman­ding that governmental policies reflect this reality. Instead
of opposing the very idea, proponents of social justice need to
devise nuanced ways of defining the creamy layer and the
mechanisms for its exclusion. However a valid question to ask
with resp­ect to higher education is if exclusion of the creamy
layer will not negate the very idea of reservations. Since higher
education is by its very nature elitist, it is almost axiomatic that
only the creamy layer – from all castes – enters the portals of
postgraduate institutes. Hence the court’s confirmation of its
earlier ruling and the central government’s eagerness to not
question the exclusion may later turn out to have defeated the
entire exercise.
Abetted by constitutional bodies like the National Com­
mission   for the Backward Classes (NCBC), OBC leaders have also
succeeded in stalling any review of the SEBCs list as mandated in
the Indira Sawhney ruling. The court has now served a much-
needed reminder on this question. A related challenge is to
ascertain whether reservations are being cornered by a few
castes or communities and whether sub-quotas could be used
for  resolving this issue. Although this issue has flared up in
Andhra Pradesh and is very much alive in Punjab, Haryana and
many other states, the political will to face this question seems
to   be absent. Finally, there is the challenge of devising
appropriate models to extend affirmative action to sectors that
have so far been exempt: the armed forces and the judiciary;
the  organised private sector; and unaided and minority
educational institutions.
However, any serious attempt to extend or to fine-tune exist-
ing policies of affirmative action would require systematic and
credible evidence. The absence of such a data base was quite
evident during the Mandal II debates when even the most basic
5
editorials
information such as the population share of the OBCs was unavail-
able, not to speak of more complex data connecting the multiple
axes of social disadvantage to unequal access to education and
employment. The latest judgment of the Supreme Court raises
many issues – fixing the gap between the cut-off for general and
OBC category, reviewing the efficacy of the new system, review-
ing the list of OBC communities, etc – that would call for credible
and systematic data. At present there is no institutional mecha-
nism for generating such data on a regular basis.
6 april 19, 2008  EPW   Economic & Political Weekly
In this context the recommendations of the Expert Group
appointed by the government to examine the feasibility of an
Equal Opportunity Commission (EOC) deserve attention. The
group has reportedly recommended that the EOC be mandated to
gather evidence on the nature of disadvantages in education
and  employment and thus work towards devising mechanisms
for addressing inequality of opportunity. Setting up an EOC along
these lines could be the first step in meeting the future challenges
of social justice.