Tilting the balance

The Supreme Court verdict against OBC reservation is based on unsound reasoning and weakens the cause of affirmative action.

THE Supreme Court judgment against reservation for the Other Backward Classes (OBCs) in admissions to Central institutions of higher learning is the latest in a series of verdicts by India's higher judiciary that seek to undo existing or proposed measures to promote equality and justice. It sets back the cause of building an inclusive, caring-and-sharing society that genuinely values diversity.

The verdict's impact will be particularly severe because of its timing - just before the admission process begins for the next academic year, for which Central educational institutions, many of them reluctant to implement OBC quotas, were allocated over Rs.2,000 crore so they could expand their infrastructure and admissions volume.

Equally damaging are its likely social and political effects, which have been widely seen as tilting the balance in the social justice debate against affirmative action. The strident celebratory welcome accorded to the judgment by upper caste-dominated groups such as the Youth for Equality and the Resident Doctors' Associations in Delhi - based in teaching hospitals that practise caste segregation and active anti-Dalit discrimination - bears testimony to that. As does the critical, even angry, response of a range of political parties that support reservation for OBCs. Clearly, the verdict is an exercise in social engineering - of the retrograde, reverse, kind.

Yet, for all its heavy implications, the judgment is based on extremely slender reasoning, contained in less than 30 brief paragraphs. (More than half the space in these is occupied by long quotes from the Supreme Court's earlier verdicts. Almost two-thirds of the judgment summarises the arguments of the petitioners and the government.)

The judgment makes no contribution to the existing jurisprudence on affirmative action or reservation by clarifying or sharpening the criteria that justify the treatment of a particular group differently from others. Nor does it explain why it is wrong to increase the number of seats available in Central institutions by 54 per cent to limit the "disadvantage" the upper castes would face thanks to OBC quotas. It merely makes numerous assertions, including the strong statement that such an increase would mean treating "unequals" as "equals".

The judgment bases itself on two lines of reasoning. First, it says that there is some indeterminacy and confusion over the OBCs' share in India's population; the number estimated by the Mandal Commission may be too high; and the government is wrong to reserve 27 per cent of admissions unless it first determines the size of the OBC population on the basis of the "objective criteria" of backwardness.

Secondly, however, it raises fundamental questions about quotas and reservations as a measure of affirmative action. If the true rationale of the judgments it cites and its own reasoning are considered, the second argument is far more important than the first one, centred on numbers. The first merely provides a cover for the second.

But let us consider the first line of reasoning. It holds that the 27 per cent quota is derived from the Mandal Commission report, which wrongly estimated the size of the OBC population at 52 per cent of the total, on the basis of the obviously outdated 1931 Census. It also counterposes it to other estimates, in particular, some derived from the recent National Sample Survey (NSS) and the National Family Health Survey (NFHS).

This involves a major distortion and a methodological problem. It is a parody to hold that the Mandal Commission relied primarily on the 1931 Census. True, it began with it as a starting point/first hypothesis because it remains the last Census to enumerate castes. But it did not stop there.

The Commission consulted a wide range of experts from different social science disciplines before reaching its conclusion. In particular, it appointed an expert committee headed by the outstanding sociologist, M.N. Srinivas, with 14 other social scientists as its members, to prepare schedules and questionnaires to be sent out to all the States and 30 Central departments. It ordered systematic surveys of all residents in randomly selected samples (two villages and one urban block) in each and every district of the country.

The experts' committee derived 11 indicators of social, educational and economic backwardness, and identified a total of 3,743 communities as "backward" and worthy of support through affirmative action.

Contrary to a widespread impression, caste was just one of many criteria. Others involved dependence on manual labour, low educational status (percentage of matriculates at least 25 per cent below the State average), high dropout rates and young age of marriage. Social indicators were given three points each; educational indicators two points; and economic indicators one point each. Quotas were only one of the Commission's dozen recommendations, which included land reform, and programmes for educational and economic uplift.

One can of course question these estimates: no expert or method is infallible. But it is simply malicious to argue that the 3,743 groups were chosen arbitrarily or as part of "vote bank" politics, or to devise a "catch-all grab for power rather than a social justice programme". It is one thing to demand further refinement in the determination of backwardness and estimates of the OBC population. It is quite another to say that the 52 per cent figure is "mythical".

It is even more wrong to counterpose the NSS and NFHS figures to the Mandal estimate. These surveys were never meant to enumerate castes and their distribution. The NSS' principal function is to estimate income, employment and consumption patterns. It does that with some rigour. But the identification of castes is left to the person being interviewed. She/he can ascribe whatever caste she/he likes. Such self-ascription is notoriously unreliable. People will claim a "backward"/higher caste status if that helps them. Besides, the NSS lumps Muslims together with upper-caste Hindus to arrive at a 32 per cent estimate for OBCs. The NHFS estimate is even lower. Questionable as they are, these numbers are well above the 27 per cent OBC quota. So they do not occasion drastic change - like staying quotas altogether.

However, implicit in the Supreme Court judgment, and heavily influencing it, is the second, more radical, argument, advanced in two judgments of the United States Supreme Court: Grutter vs Bollinger and Regents of University of California vs Allan Bakke. The first is a highly controversial verdict, delivered by one of the most conservative Supreme Courts in American history, headed by William Rehnquist, a Ronald Reagan appointee, who did a great deal to restrict the rights of underprivileged people. It is truly lamentable that our courts are following precedents set not by progressive, pro-public interest American jurists such as Earl Warren, but by ultra-conservatives judges.

The thrust of the Grutter judgment is that affirmative action, in particular in the admission process in universities, must be "narrowly tailored" to promote diversity, but not in such ways as would discriminate against those excluded from affirmative action because they do not belong to ethnic or racial minorities.

Thus, a desirable race-conscious admissions programme cannot "insulate each category of applicants with certain desired qualifications from competition with all other applicants" by creating a separate quota. It can at best assign special importance or "a plus" to race or ethnicity in an applicant's file within the general category.

The latest verdict quotes this approvingly - while apparently disregarding its import. This, quite simply, runs counter to the constitutional reservation for the Scheduled Castes (S.C.) and Scheduled Tribes (S.T.). These are the very categories, which, the U.S. court says, should not be "insulated" but made to compete with others. Such "competition" between unequal candidates reeks of total disregard for the overwhelming reality of caste discrimination and the heavy disadvantage that Dalits and Adivasis suffer - indeed, many OBCs do.

Such a position is simply incompatible with the Constitution, which right since 1950 has provided for reservation for S.C. and S.T. It should be impermissible for Supreme Court judges to oppose this important part of the Constitution. It simply will not do to pay lip-service to affirmative action, while ruling against its most commonly accepted and constitutionally validated form - reservation for S.C./S.T. Such reservation is an essential part of society's acknowledgement of the historic wrong it has done to Dalits for centuries and of the need to create social opportunity for them.

However, the judgment appears to take an insensitive and disparaging view of social disadvantage when it says: "... nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere else in the world is there competition to assert backwardness and then to claim we are more backward than you. This truth was recognised as (sic) unhappy and disturbing situation... "

People do not celebrate or enjoy backwardness. They suffer it and face discrimination, insult and humiliation because of it. Mocking at their aspirations to overcome backwardness betrays casteist prejudice.