decision of the Supreme Court to stay the implementation
of the Central Educational Institutions (Reservation
in Admission) Act, 2006 is a piece in the long and hoary
tradition of the Indian Judiciary to oppose reservations
in favour of OBCs. In 1963 the Supreme Court in the
famous Balaji decision struck down OBC quotas in then
Mysore state on the grounds that caste was an insufficient
basis for positive discrimination quotas and that an
overall quota of more than 50% went against the spirit
of the Constitution. The Balaji decision was used to
roll back reservation in favour of OBCs already in place
in Kerala, Andhra Pradesh and Bihar.
The ruling was overturned in 1992 in the equally celebrated
Indira Sawhney case where the Supreme Court for the
first time accepted that caste was a reasonable basis
for a policy of positive discrimination and therefore
implementation of the Mandal Commission recommendations
were in keeping with both the letter and spirit of the
Indian Constitution. The Supreme Court stay on the implementation
of Central Educational Institutions (Reservation in
Admission) Act, 2006 was in keeping with the Balaji
tradition with a small nod at Indira Sawhney.
It is another matter that the way the Government of
India argued the case allowed the red herring of the
1931 Census as a convenient escape clause for the learned
bench. It is afterall reasonable to argue, as the Court
did, that a 2007 policy can hardly be based on information
gathered on 1931, allowing it to walk down the Balaji
path without running foul of the Indira Sawhney judgment.
Red herring because, as has been noted innumerable times
both in academic and non-academic discourse, there exist
reasonably reliable estimates of the OBC population
put forward by the National Sample Survey Organisation
for periods as recent as 1999/2000 and 2004/5.
Perhaps equally important, in an effort to stay within
the overall limit of 50% for all quotas stipulated by
the Supreme Court, the suggested quota of 27% was significantly
lower than the share of OBCs in the overall population.
This is not to argue that more accurate information
such as through a Census should not be collected. It
certainly should. This is simply to suggest that there
exists sufficient information on the basis of which
to implement the Act rather than wait for more information.
When that information is available, and the sooner it
is the better, implementation can be better targeted
if so necessary.
Underlying the Supreme Court’s stay is the belief that
merit is being sacrificed for political expediency.
Leaving aside exceptional talent such as the CV Ramans
and Lata Mangeshkars of this world, what is called ‘merit’
is to a significant degree also influenced by an individual's
socio-economic position and/or opportunities gained
by virtue of family and social connections. Therefore,
in societies like ours, characterized as they are by
deep-rooted social inequalities, an exclusive focus
on ‘merit’ impedes mobility and tends to reproduce the
same inequalities. Despite upper caste protestations
to the contrary it is therefore neither democratic nor
egalitarian, unless there are countervailing tendencies.
I have argued elsewhere (Social Inequality, Labour Market
Dynamics and Reservation, EPW, 2nd September 2006) that
changing labour market dynamics and privileged access
to high quality tertiary education has meant upper caste
hindus (UCH) in the last decade or so have dominated
access to the best jobs in the urban economy. As a result,
in the urban economy, SCs, STs and OBCs are similarly
situated and at a great distance from UCH. More than
anything else, it is this changing dynamics of the labour
market that necessitates widening the ambit of reservations
in institutions of higher learning to include OBCs.
In obstructing this process the Supreme Court runs the
risk of being perceived as being both unfair and partisan.
But then UCH elite have long used their domination of
the judiciary and the bureaucracy as mechanisms of passive
resistance in their continuing battle to retain control
over socio-economic levers of power. Consider two examples
of radical public policy initiatives, the successful
implementation of which might have altered the trajectory
of India’s socio-economic growth: the implementation
of land reform and the SC/ST quota both of which were
a part of the socio-economic compact that led to the
birth of the Indian republic in 1950. Whereas zamindari
was successfully abolished, the distribution of land
declared surplus (beyond legally permissible holdings)
was effectively stymied as land transfer got caught
up a maze of litigation, bureaucratic obfuscation and
lack of political will.
Similarly as a response to Ambedkar’s mobilization and
Gandhi’s insistence, the UCH elite acceded to constitutionally
guaranteed quotas for SCs and STs. However by ensuring
that these quotas did not get filled, particularly in
the higher echelons of the bureaucracy, judiciary and
the public sector (including colleges and universities),
the UCH elite ensured that any transformative potential
was snuffed out. And rather than a debate why quotas
remain unfilled, UCH elites, under the garb of equality,
removed the ‘creamy layer’ from within the purview of
the quota, effectively snuffing out the possibility
of the formation of a countervailing elite.
OBC quotas have been resisted much more strenuously,
in part because UCH elites have always seen OBCs, as
compared with the SCs and STs, as being a much more
serious threat to the continued control over the socio-economic
levers of power. UCH elites have been successful in
using passive resistance as a blocking strategy because
there was insufficient grass-roots political mobilization
around these issues. It can hardly be a coincidence
that the states where land reforms (e.g., Kerala and
West Bengal) or SC/ST/OBC quotas (e.g., Tamil Nadu)
have been successfully implemented are states where
there has been political mobilization around these issues.
But successful blocking strategies and elite resistance
have also resulted in growing lower caste political
mobilization. One of the outcomes of UCH elite resistance
to Mandal was the re-drawing of the political map of
India with a politically assertive lower caste mobilization.
Therefore if, on the one hand, changing labour market
dynamics and continued UCH domination of the most dynamic
segments of the urban economy as a result of privileged
access to institutions of higher learning necessitate
an expansion of reservations in favour of OBCs, then
on the other, UCH elite blocking strategies become politically
counter-productive and socially expensive, as institutional
and social energy is spent in coming up with effective
strategies of exclusion, rather than devising strategies
of inclusion and building a consensus around which to
take this old society forward.
* The author
teaches economics at IIM Calcutta