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A ruling and an opportunity

Anita Joshua

The interim order of the apex court on reservation for OBCs can be used as a premise for moving away from the beaten path.

THE POLITICAL controversy following the recent Supreme Court order staying the implementation of reservation for Other Backward Classes (OBCs) in higher education could well be turned into an opportunity. An opportunity for the Government to revisit the decision of independent India's first government to do away with caste censuses. And, for the pro-reservation lobby, it provides an opportunity to take the sting out of the campaign against affirmative action by accepting the creamy layer concept.

Both choices are difficult. But with some imagination the situation created by the interim order can be used as a premise for steering away from the tried and tested track. Essentially, the court has questioned the data on the basis of which 27 per cent reservation for OBCs is sought to be introduced in higher education.

It reiterated that the "creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism."

First, the data. Since no caste-based census has been conducted since 1931, the court has questioned the basis on which the Government worked out the quantum of OBC reservation. And, the Government, in its affidavits submitted to the court in response to the batch of petitions challenging the new reservation regime, has detailed the process through which the figure of 27 per cent was arrived at.

There is a view within the establishment that by questioning the government's contentions, essentially the two-judge bench had changed what a nine-judge bench upheld in 1992 in the Mandal judgment. The Government's counter-affidavit was grounded in the 1992 judgment.

Nevertheless, the larger question remains. How long can the political system continue to shy away from a caste census citing the stand of independent India's first government? The thinking in the political system then was that a caste-free census would be the first step towards abolishing the age-old practice. That, of course, has not happened.

Increased caste consciousness

Caste consciousness has only increased. And, not just among the marginalised sections who have become a political force to reckon with. Matrimonials placed in newspapers and even on websites — the medium of communication of the upwardly mobile crowd — are a testimony to how much society has come to value the caste system.

Thus, in the wake of the Supreme Court order, a section of sociologists and political scientists are questioning the squeamishness about a caste census. Would this be the first Nehruvian ideal that successive governments have re-written?

Or is there some truth in the charge of the OBC advocates that the Indian establishment is clinging on to the 1951 decision to do away with caste censuses only to avoid the truth? Which is that socially and educationally backward classes make up more than 27 per cent of the population as has been shown by smaller surveys like those conducted by the National Sample Survey Organisation.

Says P.S. Krishnan, former Union Secretary and adviser to the Union Human Resource Development Ministry on the reservation issue and a votary of a caste census: "The anti-reservation lobby is shooting itself in the foot by questioning the data because if a census is ordered, the numbers will speak for themselves. The OBC percentage is bound to be more than 27 per cent. Even in the case of Scheduled Castes, their percentage went up post-Partition from 12.5 per cent in 1931 to 14 per cent in the first census of independent India to 16 per cent now."

If anything, the Government could propose a caste census — a long-pending demand of the OBC lobby — to get it to concede on the creamy layer issue. The existence of a creamy layer, not just within the OBCs but also among the Scheduled Castes and Scheduled Tribes, is a widely acknowledged social reality. Isn't it time that the OBC, SC, and ST leaders of the country accept that the creamy layer has come to corner the benefits of reservation; thereby perpetuating another caste or class — call it what you will — within their own social groupings?

In fact, the creamy layer accounts for much of the resentment towards reservation among youngsters crying foul about merit being sacrificed at the altar of caste politics and the tendency among the "quota people" to compete for backwardness.

This is a point made by the court in the interim order also: "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."

Given the manner in which the OBC lobby within the Government pushed for inclusion of the creamy layer when the Central Educational Institutions (Reservation in Admission) Bill, 2006, was being discussed, this is a path fraught with danger for the current dispensation propped up with considerable OBC support.

Even then, apprehensions expressed by some members of the Cabinet that inclusion of the creamy layer would be struck down by the courts did not cut ice with any of the OBC Ministers.

A caste census, in comparison, appears to be the easier option for the Government. Anyway, as D.L. Sheth of the Centre for the Study of Developing Studies put it, "Such a census should not just be seen as a head count but would also help the Government in more focussed planning for all sections of society, particularly the marginalised."

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