The Supreme Court (SC) finally gave its verdict, after nearly two years and 25 hearings, over the petition filed against the Central Educational Institutions (Reservation in Admission) Act, 2006 on 10 April 2008. The five-judge bench upheld the Constitutional validity of 27 per cent Reservation in IITs, IIMs and other Central Educational Institutions(CEIs) for Other Backward Castes (OBCs) thus giving a legal justification to the pursuit of social justice principles. The four judgments were unanimous about the validity of the 93rd Amendment Act and also on the skimming away of the creamy layer but they also show a fair amount of disagreement on reasons behind it as well on the ambit of the institutions where the judgment would apply.

The petitioners in the case had advocated that that the Reservation for OBCs was part of a vote catching mechanism and that identification of Socially and Educationally Backward Classes for reservation on the basis of caste was not allowed in the Constitution which seeks to achieve a casteless and classless society. This ridiculous claim of caste-does-not-exist-because-upper-castes-don’t see-it attitude was justly rejected by the judges.

The judgment now increases the chances for a greater democratisation of CEIs and students from backward classes can now seek pathways to social and economic mobility away from the rigidities imposed by caste. The UPA government was pleased with the timing of the judgement which had earlier been reserved in November 2007. But the crisis created by its inflationary policies might deflate its claims of triumph.

It is apparent that for the Act to become fully functional a few more years will have to go by. Institutions are now claiming un-preparedness to deal with the increased student intake due to the mandated increase in overall seats (to ensure that general seats are not curtailed), and are seeking to stall or stagger the implementation of the Act. Besides there are also institutions waiting for a minority status (which are exempted from the Act as they are governed by other parts of the Constitution) and have proceeded to go for a stay order from the Court so that they don’t have to implement the Act. It is evident that there is a long haul ahead and the Act which took years to materialise after prolonged struggle, may take more time for its implementation without the intervention of students groups in hastening the process within their respective universities. The reluctance of IITs and IIMs is already well known.

The exclusion of the creamy layer finds two different reasons in the judgements. While the Chief Justice of SC puts it down to the earlier decision of the nine Bench judgement on the identification and exclusion of creamy layer in the Mandal judgement as being a strong enough reason, Justice Bhandari suggests exclusion on the general principle of equality. However the judges have had differing opinions on what constitutes creamy layer though all have gone by the notification in Reservation for Socially and Educationally Backward Classes in Civil Posts and Services under the Government of India.

The differences arise on how backwardness is interpreted. Two judges note that caste alone does not compose class hence the criteria for creamy layer cannot be caste alone but also poverty, social backwardness and economic backwardness. Two other judges propose that backwardness cannot be estimated without removing the creamy layer. Still another judge recommends that the ‘creamy layer’ should include children of past and present MPs and MLAs. The problems presented by the definition of creamy layer are apparent. For instance, the social and economic status of MLAs and MPs varies from party to party. If someone from a Most-Backward-Caste has been an MLA for a brief while does that mean that with one stroke of a few years in office they would wipe away the historical educational-social deprivation that weighs on them? The vagueness of even trying to generalize on such basis can’t be lost on anyone engaged in real politics.

Steps to further democratize and increase the social base from within which the Reservation of OBCs takes place is indeed welcome. It is also necessary to put mechanisms in place such that the more dominant and assertive communities do not corner the benefits at the cost of other backward groups. A periodic review to assess the backwardness level of communities are also necessary to increase the effectiveness. But it must be kept in mind that reservation is a social policy and by imposing individual-family-centric criteria, the very thrust and breadth of the policy is likely to be being undermined.

In the Mandal judgement Rs 1 lakh is presented as the income that puts a person in the exclusion range, now even if that is increased to Rs 2.5 lakh as per the proposal, there are several confusions associated with it. First, in the absence of free and compulsory education up to the senior secondary level, it is only families with a stable source of income that could possibly send their children to a CEI for education. Second, the decision to make the family income as a unit of measurement for backwardness does not take into account the number of dependents, the unpredictability of rural agrarian incomes and lack of cultural capital (simply put, the attitude, aptitude, the skills to succeed in academic institutions where all these are overvalued but which are inherited from the family and community as legacy over generations.) Moreover it is not as if imposition of these criteria would democratize access to IITs and IIMs and other central institutions further. It is far more likely to lead to non-fulfilment of the quota by fair means and removal of a large section of the potential beneficiaries. This is not surprising considering the cultural capital, investments and coaching required to get into these institutions. It is quite perplexing that while backwardness is a combination of social-economic-educational factors, the economic criteria alone could be thought of as a means for imposing the status of a creamy layer, and educational levels of parents alone could become reasons for being deemed a member of the forward class. One of the judges has even suggested that possession of a graduation degree ought to amount to ‘educational forwardness’! A definition of creamy layer that results in excluding graduates is quite unacceptable. After all, central universities ‘of excellence’ are places where students arrive for post-graduate and research training and simply by fulfilling the eligibility for the university, the students from the backward classes would forfeit the benefits of quota! Anyway, the UPA government has chosen to move ahead, taking the Mandal I Judgement as the basis for fixing creamy layer.

There are various suggestions that it is up to the Government to accept or not. For instance, more than one judge has suggested fixing cut-offs, five or ten marks below the cut-off marks of the general category; one has even added that in the case of unfulfilled quotas, the seats can lapse to the general category. This suggestion, if accepted, could end up subverting quotas entirely. One is aware of how fulfilment of SC/ST quotas is routinely thwarted, and in post-graduate admissions in AIIMS, the Courts have had to take note of cases where SC/ST seats have been left empty even when the SC/ST candidates have far higher marks than general category candidates who have secured admission.

There are also recommendations on expansion of free and compulsory education at primary and secondary level. Considering that the UPA government has diluted the Free and Compulsory Education Bill and dismissed the Central Advisory Board of Education’s (CABE) Universalisation of Secondary Education Report by not setting a time limit, it is highly unlikely this fundamental recommendation will be implemented.

A significant percentage of the expansion in higher educational institutions is in the private sector. Yet four of the five judges left this matter open as these institutions had not approached the Court while one judge observed that getting private institutes within the ambit would violate the fundamental right to carry on an occupation. Private institutions have grown on the strength and subsidy of public money. They have got subsidized land, tax free incomes, teachers trained at subsidized rates, water and electricity at non-commercial rates – yet when it comes to implementing social policies, the neo-liberal state is loth to demand social responsibility! While no one is discussing this, in the meantime, once again the opinionated classes ranging from a “Lord” Meghanad Desai to run-of the-mill management trainees and columnists with a recipe for all occasions have started proposing that school education has to be strengthened and that the private sector has to be bolstered. The private institutes are the preserves of the rich, the elite. These are places preserved for the creamy layer of forward classes. Why is there a delay in opening up these places for scrutiny?

It must be remembered that reservation is a mechanism prescribed by a liberal society for providing equal opportunities to all without undertaking fundamental systemic changes. For reasons of the ‘efficiency’ criteria, such a society would like a wider talent pool, not restrained by the caste and race of the person. However it is true that in the absence of radical measures that attack the very roots of dispossession, reservations alone cannot offer paths of social or economic mobility to all. However, they are a means for ensuring that some groups are not forced to run the race for employment and education in a liberal society with the shackles of historical deprivation. It is a small measure for ensuring that socially and educationally backward groups that have been historically marginalised from education get a chance to break out of their traditional occupations and enter new paths of social mobility. Everyone within a backward scheduled caste/scheduled tribe community may not move up but that is also because even the best of liberal societies do not allow everyone to move up in the social mobility ladder. True economic criteria would be to ensure free education to all sections irrespective of their backgrounds - but that is not going to happen within the scope of ruling class policies in our society. Till then there can be no cause to delay, stall, or subvert implementation of the quotas.