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Beyond the admission imbroglio

Once the Supreme Court refused to vacate its stay on the implementation of 27 per cent reservation for Other Backward Classes (OBCs) in central educational institutions, the United Progressive Alliance government was left with no option but to permit them to admit students on the basis of the previous year's intake. The decision lifts the cloud of uncertainty that hung over the Indian Institutes of Management, and other central government educational institutions that are about to start a new academic year. The government — which has the support of parties across the political spectrum on the OBC quota issue — must now focus its attention on warding off the legal challenges to the constitutional validity of the Central Educational Institutions (Reservation in Admission) Act 2007. As a social justice measure, its broad thrust is in harmony with Article 15(4) of the Constitution, which empowers the state to make "any special provision for the advancement of any socially and educationally backward classes of citizens." By a mandatory increase in seats, it benefits the OBCs without affecting the existing opportunities for students in non-reserved categories. The Act essentially followed the earlier government order based on the Mandal Commission recommendations.

In staying the operation of the Act with respect to OBC admissions this year, the Supreme Court seems to have been led by two broad lines of reasoning. First, and somewhat inexplicably, it held that the 1931 census, the last time the population was enumerated caste-wise, could not be "the determinative factor" in fixing the OBC quota at 27 percent, which needs to be arrived at on the basis of "objective criteria." But the figures for the OBCs are derived from the report of the Mandal Commission, which may have used the 1931 census as a starting point, but identified communities forming over 50 per cent of the population as backward on the basis of a wide-ranging survey by an expert committee headed by the renowned sociologist M.N. Srinivas. In 1992, a nine-member constitution bench upheld the 27 per cent reservation for the OBCs in the landmark Mandal case. The second problem relates to non-exclusion of the "creamy layer," which goes to the basic question of identifying a class as backward. Here the two-member bench was on stronger ground: the Supreme Court stipulated in the Mandal case that the creamy layer must be identified and excluded from OBC quota entitlement. Over the years, governments in States, and now the UPA government, have chosen to ignore this essential part of the judgment. As for the government's contention that the creamy layer rule applied only to Article 16(4) or reservation for jobs and not to Article 15(4), the judges felt this issue needed to be examined in detail. The petitions challenging the validity of the Central Education Act involve substantial issues of law, social justice, and equity. They must be referred to a constitution bench for determination.

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