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The five-judge constitution bench of the Supreme Court has conditionally upheld the 93rd Constitutional Amendment and the Reservation Act, which would enable implementation of the 27% reservation for the Other Backward Classes (OBCs) in central educational institutions.

The major qualifications, which essentially raise serious doubts about the effectiveness of caste-based quotas in providing equitable and wide access to quality education at all levels are as follows:

Preparation of a list of beneficiaries, exclude creamy layer: The government has been asked to prepare and periodically update the list of economically and socially backward classes who should be included in the list of beneficiaries.

It is astonishing that until now no such list of intended and actual beneficiaries has been compiled and subjected to public scrutiny. The Right to Information Act should be vigorously applied to ensure that such a list is not only prepared but also subjected to public scrutiny and accountability.

The majority of judges on the Bench have strongly recommended that the so called creamy layer of OBCs must be excluded. Any government or political party, which wishes to be credible about serving the interests of aam aadmi, should whole-heartedly welcome this qualification.

In 1993, the key criteria to decide the creamy layer among the OBCs included all the people with landed property, all government employees above Class II, and all OBC families with gross annual income of Rs 2.5 lakh and above. While there is some room to update the income criteria concerning the creamy layer, there is no merit or social justice in the children of politicians and high-income individuals from the OBCs availing quotas to gain preferential access to higher education, at the expense of those with greater economic need among the OBCs.

The majority judgment has rightly held that if a person is educated and attains graduation, he or she no longer belongs to OBCs. This implies that educational backwardness has also been considered relevant by the Supreme Court. The Court is therefore against the reservation for OBCs in the post-graduate and specialist educational institutions.

Thus, it appears that application of the judgment will not permit reservations for the OBCs in IIMs and similar post-graduate institutions. The graduation criteria for classifying an OBC as part of the definition of creamy layer will provide even greater opportunities for the economically needy and educationally deserving OBC candidates.

It is in the interest of the ordinary OBCs to guard against being misled by those who want to perpetuate privileges for a very small group of OBC elites, resulting in widening inequalities among the OBCs. It is time serious public policy debate was initiated in intra-group inequalities, including among the OBCs. The focus should be on increasing competence and employability of members of these groups, and providing overall policy environment conducive to creating productive and sustainable livelihoods.

Recognition of merit: The judgment does indicate that the difference between the admission marks of the general category of students and for those admitted under OBC reservation should not be more than 5-10 marks. This creates a floor below which the OBC candidate should not be admitted.

The society’s need for competence and employable graduates has therefore been balanced with provision of educational access to the OBCs. This principle of recognising merit deserves to be applied in wider spheres of public sector activities and organisations as well, albeit with appropriate modifications if India is to become a major power.

Periodic review of effectiveness of reservations: The judgment has appropriately incorporated periodic review of effectiveness every five years. Justices Ajit Pasayat and C K Thakkar noted that there has been no deletion from the list of the OBCs over the years. Instead the list has been growing. The Court has recognised that this implies that the backwardness is increasing.

There is a logical inconsistency in the positions of the government, certain political parties and individuals on the ever-widening use of reservation instrument for reducing backwardness when the growing list suggests that it is increasing. If the results are meagre even after six decades of reservations, then the burden of proof must be on those who argue for continuation of such demonstrably ineffective instruments.

The judgment clearly implies that reservations and social justice are not intractably linked.
For too long, the education policies have neglected the supply side of education in providing the much needed infrastructure; addressing rigidities in the educational institutions and regulations; and improving the quality of teachers and researchers
at all levels of the education system.

The main constraints are not monetary resources, but what Bimal Jalan has termed the “ruling mindset,” which does not adequately respect or respond to the needs of
ordinary people in a way that improves the quality of life and reduces costs of everyday living.

Uncertainties generated by current higher education policies at the time of admission reflect incompetence of the policymakers and built-in rigidities in expanding supply of education.

The neglect of primary education, evidenced by a large number of schools with no school building, no blackboard, and no electricity; high student to teacher ratios (in many cases exceeding 100 students per teacher); and single teacher schools, etc have already cost the country, particularly the low income households, dear in accessing economic opportunities and upward socio-economic mobility. Such neglect is also evident at secondary and higher levels of education.

Focusing the energies of policymakers on improving this state of affairs will do far more for the aam aadmi than doggedly pursing reservations for ever widening section of population.

The misplaced penchant shown by the policymakers in giving priority to dogma and political expediency over meeting the future educational needs of a rising India have led to considerably diminished legitimacy and authority of the policymakers and leaders and those in charge of running the education sector.

The above analysis strongly suggests that the judgment of the Supreme Court be respected in both letter and spirit. Those who are now trying to subvert the letter and spirit of the verdict should receive severe social and political disapproval.

India’s national interests are best served by ordering our society around equality, merit and a quest for excellence. The Supreme Court’s judgment should not be viewed as an end in itself, but rather as an intermediate step towards this goal.

The writer is Professor of Public Policy, National University of Singapore and can be reached at
sppasher@nus.edu.sg.
Views are personal.