The Constitution Bench judgment on upholding reservation in higher educational Institutions has come on expected lines, in the light of the judgment in the Indira Sawhney case (1992). Though 27 per cent quota for OBCs was loosely challenged, but this plea was an empty one because Government of India’s latest National Sample Survey data
(2004-05) shows 41 per cent and 43 per cent constitute OBCs amongst Muslims and Hindus respectively.
Of course, everybody knew that the real issue was: would the Court accept government’s partithe san approach (no doubt influenced by the higher echelons of the OBC political leadership) that the principle of creamy layer amongst OBCs should be dispensed with? The court has given short shrift by holding:
Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) and also of Article 16(4).
It is unfortunate that because of partisan politics some are still unwilling to accept this equitable decision and thus putting in jeopardy the implementation of this overdue measure for the poor segments of the OBCs. As it is, the partisan approach of the higher segments of the OBCs has already done considerable damage to the SC/ST students. This is shown by the fact that all the parties indulged in a conspiracy of silence with regard to the benefit that was to accrue to the SCs/STs under this very government circular from last year.
It may be noted that though the Supreme Court had given an interim stay regarding OBC admission, there was no stay regarding the SC/ST quota, which could have been filled up; but no one spoke about it and it has unnecessarily gone waste for the last year. This indifference to the SC/ST quota exposes the hypocrisy of many politicians that when they are talking of uplifting the poor, it is the caste angle which has primacy. It should be noted that the extra seats created for 2007-08 were 12,216 of which 9468 were for the OBCs, 1832 for the SCs and 916 for the STs. Thus it was possible for the government to fill up the quota for SCs/STs (a total of 2748 seats). The managements of institutions had no objection because they had already made arrangements for filling up 12,216 seats.
But surprisingly no effort was made to fill up the SC/ST quota last year. This anomaly was felt very strongly by the People’s Union for Civil Liberties (PUCL) which, by its letter of May 4, 2007, brought this fact to the notice of the Prime Minister, Arjun Singh, and others including Ms Mayawati, the Chief Minster of UP, expressing its anxiety and surprise that so far the government had not taken any steps to fill up the seats reserved for SCs and STs when there was no restraint against them. Unfortunately for reasons not clear no steps were taken—as a result the SCs/STs lost last year’s quota.
Again from the current press reports it appears that some political groups are trying to find ways how the creamy layer can be included in the quota (a useless exercise in view of the judgment). No attention is also being paid in this process for the enrolment of SCs/STs which is permissible—why has the government not asked the institutions to go ahead with their admissions? Whatever the angularities regarding the OBCs, those can be worked out, but why should SCs/STs be denied admissions in higher institutions again for the second year? Why must partisan politics always override equity and fairness to the most neglected? Is it because the political leadership is under pressure from the creamy layer of the OBCs not to let SCs/STs take benefits if the same are not at the same time available to the OBCs? Is this social justice? Is it not pandering to caste politics and the vote-gathering mechanism? But why is the SC leadership not exposing this game? Even Mayawati is playing cool on this.
I feel that nervousness on the issue that if the OBC is a graduate, but economically below the guidelines of 2004 (updated to the present inflation index) he will not be eligible for admission in the OBC quota, is misplaced. The creamy layer touchstone is not only at the educational level but also at the economic level. Thus it would be unacceptable and unjust if a conscientious hardworking OBC poor was to pass graduation by studying even under street lights (such instances have actually happened) he should be deprived of the benefit of reservation even when his family income is below the limit. As the Court has said about the exclusion of the creamy layer, “one of the main criteria for determining the socially and educationally backward class is poverty”, and that the “creamy layer has no place in the reservation system”.
I feel prima facie the family income level of Rs 2.5 lakhs per year fixed in 2004 (updated by the inflation index) can be the uppermost limit for being retained in the non-creamy layer. To call it inadequate would be a mockery considering that statistics show that the OBC Muslims (82 per cent) and Hindus (80 per cent) are below a per capita consumption of Rs 20 per day—as it is even the national average of the poor whose per capita consumption per day is Rs 20 constitute about 77 per cent of the total population.
The Court has also given the direction that ‘there must be periodic review as to the desirability of continuing with the reservation, and suggesting possibly five or ten years’. With due respect it seems to me that this direction is hasty, considering that the directive of Article 45 of the Constitution (now made a Fundamental Right) that the State shall provide free and compulsory education until the age of 14 years remains a woefully distant dream, coupled with the fact that, according to the Census of 2001, national literacy (which in reality only means writing your name) is 65 per cent.
Justice Bhandari’s suggestion that legislators should be outside the ambit of reservation is sound both in principle and equity. Legislators, who proclaim their first loyalty is to the common man, must show their genuineness by making this voluntary gesture—as it is they are certainly far above the limit of social/economic backwardness.
Another fear expressed is that if the creamy layer is excluded the quota for OBCs will remain unfilled. I would therefore suggest that if after filling up from non-creamy OBCs, any seats are left out, they should be filled up from economically weak and backward non-creamy segment of non- OBCs. If still the quota remains unfilled, those vacancies could be filled up by the creamy layer of the OBCs, but not otherwise.
The Court has rightly not given any direction regarding minority institutions. But does not equity demand that these institutions on their own provide proportionate quota for non-creamy OBCs amongst their own minority on the same terms as for non-minority institutions?
The author, a former Chief Justice of the Delhi High Court, is a distinguished champion of human rights and civil liberties; he was also the President of the People’s Union for Civil Liberties (PUCL).