Reality Check India

OBC Quota – Judgement reserved

Posted in Uncategorized by realitycheck on November 2, 2007

 

After a marathon 25-day hearing, the Supreme Court reserved its judgement on the OBC quota case.

Reporting in the media was disappointingly sparse for such a landmark case. The outcome of this case will determine the future of Laloo, Karunanidhi,  Ramadoss, Nitish, Deve Gowda, and countless other political forces that depend on the way the quota system works.

The petitioners summary

The impugned Act was unconstitutional for the reason that a wholly arbitrary power was delegated to the Centre without any guideline laid down for identifying the socially and educationally backward classes under Article 15 (5), and no machinery was provided for this purpose. Historical discrimination of certain classes was not by itself a factor for determining the beneficiaries under the 27 per cent OBC quota law, the petitioners argued.

The governments summary

In its response, the Centre said it could not be disputed that large sections were socially and educationally backward. Though the estimated OBC population was 52 per cent, the quota was restricted to 27 per cent in view of the 50 per cent cap on reservation fixed by the apex court. Further, it was not possible to exclude the creamy layer.

“The policy of reservation flows from the mandate of equality and till the time the constitutional objective of ‘real equality’ is achieved, there is a constitutional mandate on the state to have special provisions in the nature of reservation for the uplift of backward classes.”

Source : Hindu

This is completely along expected lines. The petitioners try to get the centre to come down to discuss the modalities of the quota, but the centre wants to talk about the concept of the quota. The main thrust of the petitioners is not the concept of the OBC quota itself, but the way it works on the ground (the identification of beneficiaries, the exclusion of creamy layer,the mechanisms of data collection and review). The concept of OBC quota is constitutionally valid, but only if it implementation is too.

Ram Jethmalani’s legal points

The legal blog “Law and Other Things” is providing some welcome coverage of the case.  (I do not comment there because it is a moderated blog).  There are a lot of legal fine points raised in that blog, and I do appreciate the importance of those. However, ‘legal points’ even if they are raised by the ‘king of legal points’ Mr Jethmalani should not allow the core issue to be lost in an ocean of words. I am ignoring the completely over the top submission of Mr Jethmalani that “Upper castes are to be blamed for corruption“. This is just a distraction.

Take the core issue of Art 16 (2)

(2) No. citizen shall, on grounds only of religion race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State.

The key word here is “only”. This is rightly pointed out by Mr Venkatesan when he refers to the case of B.Venkatramana Vs State of Madras 1951.

Let us explore this a bit.

1. Lets remove the religion, race, sex.. etc from the sentence to help us focus.  What remains is this : “A citizen cannot be discriminated based only on caste in any employment or office under the state”.

2. This reduces to the following :

a)  a citizen can be discriminated based on caste + “something else”

3. Lets move along this path.

a) What are all the allowed possibilities for that “something else” ?

b) Can it be “caste” + “baldness” ? “caste” + “financial status” ? “caste” + “political affiliation” ? “caste” + “state” + “district” ? “caste” + “victims of Mughal rule” ? “caste” + “victims of denial of vedic knowledge” ? or “caste” + “anything the politicians want” ? “caste” + “victims of Aryan invasion” ?  and so forth.

4. The popular opinion is that the constitution only allows “caste” + “social and educational backwardness”. The exception of course is the SCs and STs where the constitution explicitly allows benefits based on caste (for SCs) or geography only (for most STs).

5. In Venkatramana, the court upheld the quotas for backward hindus  + dalits – but not non-brahmin hindus. The take-away from this judgement is that caste + “backwardness” is acceptable, but caste + “anything else” is not. 

In Venkatramana, the commonsense assumption is that the group “backward hindus” are distinct from “non-brahmin hindus” in the sense that if measured they would exhibit a lower level of advancement than the non-brahmin hindus.  Venkatramana does not make the case for measurement weaker, it makes it stronger.

The knee jerk, media driven viewpoint is that the petitioners are “anti-quota”. This is far from the truth. The petitioners are in favour of the OBC quota only if the system is rescued from the clutches of politicians and delivered into the hands of a data driven mechanism.

Previous coverage on this blog:

Champakam (First Amendment), Indira Sawhney -I , Kerala (Indira Sawhney II)Illogical to ask for data ? , Why cant 42% get 27%, If Lakshaweep can have only 1% unreserved, why cant TN have 4-12% unreserved castes ?

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One Response

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  1. xyz said, on November 7, 2007 at 8:09 am

    Mandal II was started by arjun singh,in a matter not very different from the way mandal I was started by VPSingh.There was no general demand,yet when the quotas were announced ,it became difficullt to back off.

    Atleast Mandal I had some rationale because the IAS has something to do with power.And so dravidian politicians and yadavs could interpret it as a move to gain power.

    On both occasions,the thakurs behaved like petulant boys who were grieved that far worse black sheep had been pampered,while they were being ignored or taken for granted.The thakurs are a part of the national mainstream and so could not agitate on the basis of language/identity etc,while other goondas were enoying the party on the grounds of ethnicity.They decided to have some fun.

    It is wrong to compare Deve Gowda with Karu.DG doesn’t care beyond karnataka while karu’s sadsistic perversions are well known.


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