[Reader-list] Indira Jaising on Supreme Court Judgment in OBC quota case

[Anuj Bhuwania]

The Supreme Court's stunning decision!
  Indira Jaising

  April 10, 2008
  The judgment of the Supreme Court upholding the Constitutional
  validity of the Central Educational Institutions (Reservations in
  Admissions) Act 2006, was delivered today by a bench of five judges,
  unanimously upholding the validity of the Act.

  This means that the government will now be able to reserve 27 per cent
  of seats for candidates from 'Other Backward Classes' in IITs and IIMs
  (and other central educational institutions).

  The judgment is a resounding vindication of our Constitutional values
  and is rooted in the history of the struggle for Independence and the
  major concern of our Constitution for the abolition of discrimination
  based on caste, which characterised our society.

  What was at stake was future directions in a country beset with caste
  prejudice and social stratification. The judgment gives a clear signal
  that the future lies in inclusive growth, inclusion of SC/ST and
  backward classes in the halls of higher learning.

  What is more important, it rejects a facile notion of 'equality' as
  requiring equal treatment of those unequally situated. Rather, it is
  based on a notion of equality that recognises the vast inequality that
  exists in Indian society, an equality of status and opportunity in all
  fields of life.

  This interpretation of 'equality' holds great potential for social
  change in the matter of distribution of national resources, based on
  need and historical disadvantages, rather than on market forces. It
  also has important implications for women who have been demanding
  reservations in Parliament, in state legislatures and will put to rest
  any argument that any such reservations will result in inequality of
  results.

  Considering the law was unique, in that it actually increases capacity
  in these institutions, by increasing the number of seats, one wonders,
  what was behind the objection to the law. The forward classes stood to
  lose no seats, something that is commonly objected to.

  This was a law that created an additional 27 per cent seats to be
  filled in by the backward classes. It actually proposed the building
  of a new capacity in the institutions to be made available to OBC
  candidates. Clearly therefore, the petitioners were demanding that
  this newly built capacity should also go to the open general capacity.

  Though dressed in Constitutional rhetoric and political cynicism, the
  bottom line was a fight over national resources and how they should be
  distributed. It was a battle to defend class and privilege closing the
  doors to those other excluded, to enter the realm of higher education.

  Those who opposed the law argued that what was important was basic and
  primary education and not higher education! What after all, is basic
  education meant for, if not to enable a person to aspire to the
  highest attainable standard of education, employment and enterprise?
  Or were they perhaps suggesting that education for them must be
  confined to A B C -- enough to enable a SC/ST and OBC candidate to be
  a peon in a government office, or a clerk, or worse a domestic?

  Crocodile tears were shed in court for children on the streets and on
  child labour, suggesting basic education as the solution to the
  problem. The other major argument was that to take caste into
  consideration as a factor to determine social backwardness was
  unconstitutional, since the mandate of the Constitution was to abolish
  caste.

  The argument was convenient to say the least and legally inaccurate.
  What the Constitution attempts to abolish is the discrimination and
  disadvantage attached to caste, not caste. Caste cannot be abolished
  with a magic wand or with a Constitutional mantra. What it need is
  strategies to benefit excluded cases including the provision of higher
  education.

  The combined effect of these arguments was to project their
  petitioners as progressive people, who believe in the need for
  primarily education for all and in the abolition of caste.

  Fortunately, the court was able to see through the smoke screen, and a
  smoke screen there clearly was. All the time, one got the impression
  that the real contesting parties were not present before the court.
  Perhaps one got a clue from the fact that the 93rd Amendment to the
  Constitution which enabled this law, also enables the making of
  reservations in the private sector.

  And judging from the arguments that were addressed, I got the
  impression that a surrogate battle was being fought by foreign
  universities and private educational institutions, all of whom are
  entering in to the field of education in India in a big way. Perhaps
  they were the real objectors to the law, though absent from the court.

  The Supreme Court wisely avoided answering the question whether
  reservations can be made in private institutions, stating that the
  question will be decided only as and when a law is made making
  reservations in private institutions. This means, the issue is left
  open for an appropriate day.

  In this stunning decision of the Supreme Court of India, one
  recognises the power of a Constitutional Court. The judgment is a
  vision statement, a road map for development, a road map for inclusive
  growth. It is time for us to acknowledge frankly that the so- called
  benefits of globalisation and privatisation have not reached the lower
  levels of society, but remained in the privileged hands of a few, for
  whom the world begins and ends with fashion, Bollywood and cricket.

  At a time when prestigious foreign universities are looking to set up
  shop in India, it is only natural that they need to know where they
  stand on the reservation issue as it will impact deeply on their
  finances. Education will become more out of reach than it is already
  for the backward classes. The Supreme Court judgment corrects an
  existing imbalance in this regard.

  What requires special mention is arguments advanced by the team
  working for the government. Solicitor General Ghulam [Images]
  Vahanvati argued that we need to acknowledge that equality in the
  Article is not about treating likes alike, but about compensation the
  backward to ensure equitable distribution of scarce resources.

  Gopal Subramanium placed the debate in historical context and pointed
  out that American judgments freely thrown about in court by the
  petitioners, could not be relied upon, the Indian Constitution was
  based on an understanding of the direction of social change desired by
  the Constitution makers.

  K Parasaran, former attorney general for the Union of India, returned
  the Preamble to its rightful place, emphasising the Constitutional
  goal of equality of social status. Appearing for one of the states,
  Andhra Pradesh, I pointed out that under the federal structure that we
  have, the states have identified backward classes and taken special
  measures for their advancement for more than a century.

  In support of the Constitutional challenge, all that was argued is
  that the law was a measure in 'vote back' politics. This is cynicism
  carried to its extreme. It is unfortunate that we have reached a stage
  in political debate which is bipartisan and cynical. This time, all
  political parties had supported the passage of the law in Parliament.

  The cynicism came from the counsel in court, mouthing what one would
  expect to hear from politicians. Very few political parities had the
  courage of their conviction to defend the law in court, one of them
  being the Rashtriya Janata Dal through Ram Jethmalani.

  The petitions, however, invited the court to hold that the law was a
  measure of 'vote catching' and the unanimity over its passing was
  sought to be projected as an exercise in self interest rather than in
  the interest of the OBC. It is to invite court to decide on prejudice,
  not on Constitutional vision. Fortunately that view did not prevail.

  It is true that the judgment calls upon the government to exclude the
  'creamy layer.' This seems to be in line with the Mandal judgment,
  which also mandated the exclusion of the creamy layer in employment.
  It was argued for the Union of India, that in order to avail of the
  benefits of higher education, one needs to be in a stable economic
  position to arrive at the level or competing for those exams. To
  exclude them, would be to deny the class as a whole, the benefit of
  those who could become leaders and peer group motivators.

  However, that was not to be. Given the exclusion, there is a case for
  upward revision of the income limit for deciding backwardness, given
  the passage of time and inflation. The exclusion of children of former
  and sitting MPs and MLAs seems to be motivated by the assumption that
  they are already at a high level of achievement. While this may be
  true of those who inherit their MP status from parents, it is not
  necessarily true of others.

  I recently represented Haribhau Radhord, MP, the only member
  Parliament from the Nomadic and Denotified tribes, who has been
  fighting a lonely battle for including these categories for
  reservations in employment.

  It is too much to expect that the privileged will give up their fight
  so easily, but what the judgment does is give legitimacy to the
  struggle for justice of the OBC, a legitimacy which was denied to them
  in the smoke screen of 'vote bank politics' and political bargaining
  between the leaders of these communities.

  Many a battle between the health minister and the director of All
  India Institute of Medical Sciences has its origins in the known
  opposition of students and faculty of AIIMS to reservations. Who can
  forget those images of striking doctors supporting the director and
  opposing reservations?

  During the arguments, I was being told, "Do you know, so and so is the
  head of medicine in the hospital? He is SC. No one goes to him." The
  suggestion was that the SC doctors are not good at their work. For me,
  it was evidence of the deep rooted caste bias against the best and
  most qualified of the SC and ST.

  We need to celebrate that fact that Indian society is on the march in
  the direction of social change and upward mobility for the
  dispossessed, despite the well funded, well disguised and well argued
  case of the forward class doctors of AIIMS.

  The court has been able to separate the grain from the chaff and look
  at the reality of the situation. The judgment will change the lives of
  many formally excluded sections from the halls of higher learning and
  privilege.

  Advisedly, the court did not go into the question whether reservations
  can be mandated in private colleges. However, it is an idea whose time
  has arrived, a law waiting to be passed, a constitutional challenge
  waiting to happen. I would like to be there then to defend the law, as
  I was this time round.

  Indira Jaising is a well-known Supreme Court lawyer.