Reality Check India

Quota – for want of a horseshoe nail

Posted in Uncategorized by realitycheck on April 11, 2008

“For want of a nail, the shoe was lost.
For want of a shoe, the horse was lost.
For want of a horse, the battle was lost.
From loss of the battle, a war was lost.
All for the want of a horse-shoe nail.”

You have surely heard the above lines or some variant of it. What does it have to do with those who desire a data driven social justice policy ? We just lost face and there is no turning back. Read on.

Readers of this blog will be familiar with what I consider the foremost national secret of contemporary political forces and their supporters. I call this simply “data” or “truth”. What this really means is, data on the effects of the quota system on its beneficiary castes. This data is the only way to validate any policy that abridges the fundamental rights of millions of citizens.  To be clear, there is another type of data – which is the census, and national surveys. They can be used to select target groups for preferential policies. However, any policy must be validated only with data on its beneficiaries.  It is this data which I believe is sought to be prevented from being collected and made public by political forces. People who are quick to compare quotas with American affirmative action – will appreciate that the United States makes available such data,  in detail, in copious amounts, publicly, and in good faith. See here for an example.

To be honest, I expected the court to uphold the quota due to precedent set by the larger 9-judge bench in Indira Sawhney and the presence of atleast a few obviously deserving castes in the list. I feverishly expected the court to insist on participatory data as a necessary constitutional validation (how various beneficiary castes in the OBC list participate in this program). It must be noted that only the government has the means to collect this data. Without this data, citizens cannot challenge anything in front of the government agencies.  In todays computerized systems, this data can be collected in a matter of minutes. I am greatly disappointed by the judgements to the extent that such a check has not been placed, atleast not strongly enough to qualify as a check.

There are two provisions which offer a faint flicker of hope – the creamy layer exclusion and the 5-year review.

The “5-year” review

First, let us consider the “5-year” review.  In my understanding of the judgement, the court has distanced itself from involving itself in “scrutiny” and “due-process”.  It is how it has always been. Perhaps, the counsel for the petitioners were wrong in pursuing this line after all. 

Consider this :

The aforesaid principles applied by the Supreme Court of the
United States of America cannot be applied directly to India as the
gamut of affirmative action in India is fully supported by
constitutional provisions and we have not applied the principles of 
“suspect legislation” and we have been following the doctrine that
every legislation passed by the Parliament is presumed to be
constitutionally valid unless otherwise proved.

Link : Para 184

combined with this :

After some period, if it so happens that any
section of the community gets an undue advantage of the
affirmative action, then such community can very well be excluded
from such affirmative action programme. The Parliament can
certainly review the situation and even though a specific class of
citizens is in the legislation, it is the constitutional duty of the
Parliament to review such affirmative action as and when the
social conditions are required.  There is also the safeguard of
judicial review and the court can exercise its powers of judicial
review and say that the affirmative action has carried out its
mission and is thus no longer required.  In the case of reservation
of 27% for backward classes, there could be a periodic review
after a period  of  10  years  and  the Parliament could examine
whether the reservation has worked for the good of the country. 
Therefore, the legislation cannot be held to be invalid on that
ground but a review can be made after a period of 10 years.

Link : Para 187

It is also clear that  “due process” is not required under the Indian constitution.  Americans have such protections such as the “right to due process”, Indians do not have that protection. At least it is not part of their rights.  The government can abridge (not abrogate) the fundamental rights of citizens without having to present compelling evidence of national need.  For me, this is an eye opener about the reality of the nature of the Indian state. I now appreciate those who have fallen out.

There appears to be a ray of hope for citizens to judicially challenge blatant and obvious anomalies in the OBC list. An example would be the state of TN, where the 80-90% of open category seats are filled with candidates of certain castes classified currently as OBC.  It is however a doomed-to-fail-catch-22 situation because the data on which such a challenge could be entertained is not made available by the government. We are then back to square one. The periodic review clause in conclusion is along the weak lines of the earlier Indira Sawhney (Mandal – 1) bench, which mandated a review after 10-years. It is now 18-years and no review.  No harm.

The creamy layer

This has far wider ramifications than the review program.

In my previous posts, I was very suspicious of the entire concept of creamy layer. At best, it is a bandage to cover up the reluctance of the politicians to divulge “data”. As a constitutional bandage, it does have its merits. It prevents atleast the most jarring scenes, such as a doctors son from a landowning caste driving to college in a Ford Endeavor – trumping a cook’s son based only on the accident of his birth.  Even though the creamy layer critieria is not followed in Tamilnadu, it has value as a national policy.

The problem with this bandage is : should it be a tiny Band-Aid strip or a plaster cast.

The most important provision of the creamy layer exclusion is this :

Persons engaged in profession as a doctor, lawyer, chartered accountant, Income Tax consultant, financial or management consultant, dental surgeon, engineer, architect, computer specialist, film artistes and other film professional, author, playwright, sports persons, sports professional, media professional or any other vocations of like status.

Source 

This is the most effective filter. Today, there are thousands of beneficiaries in the south working in the IT export industry who have made several foreign trips and are not backward by any stretch. With only an income criteria, they can take a break for a year and subvert it.

There are also serious problems with the creamy layer concept. It will seriously damage the really backward castes.

For example : A Kuravar gypsy (just an example) may have only a handful of families who have clawed their way into middle class hood. A creamy layer policy intended to keep the rich of the landlord and politically powerful castes from dominating the quota will devastate such lower castes.  This singular failure will cause extreme resentment among the lower castes among the OBC group (which I have said earlier is double the population of the United States). The real question  : “Why are the rich landlord castes grouped together with castes with lesser ability ? ” will always lurk in the background screaming for an answer.

The suggestion to exclude children of current and former MLAs, MPs will also cause anomalies. People of Tamilnadu will remember great men of integrity like Kamaraj who did not care for money. He actually rode back in a bicycle after demitting his office. Even today, I heard descendents of Rajaji are living a hard life in the lower rungs of society. Will this criteria be a signal for politicians to “make enough hay while the sun shines to secure payment seats” ? Only time will tell.

Will the various creamy layer criteria be the first casualty ? Only time will tell.

Will the 93rd amendment be still valid if this clause is struck off ?  Only more judicial litigation will tell.

—-

I believe we have come to the end of one leg of our journey and are about to embark on the second leg.  The second leg will feature all the following events with the implicit agreement that participants will leave demands for data at the door.

  • Cabinet meetings to redefine the creamy layer criteria to the point of subverting its purpose
  • Splitting the OBC quota into MBC. To be fair, Dr Ramadoss played a pivotal role in getting this passed. It would be unfair to deny MBCs a separate quota.
  • Sub-quota for minorities
  • Faculty quota in IIT,IISc, IIMs. I hope all faculty members are dusting off their caste certificates (or the lack thereof)
  • Jostling by various sub-castes in a data-free environment of political wheeling dealing.

Reality Check will not be on that second leg. 

To conclude , my favourite quote :

If you ever drop your car keys into a river of molten lava, just let ‘em go, because, man, they’re gone

                      – Jack Handey

 

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6 Responses

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  1. rahul said, on April 11, 2008 at 8:47 am

    great post..very incisive…yes, it would be really difficult to separate the cream..from the milk….plus there will now be a huge market for fake OBC certificates….

  2. Observer said, on April 11, 2008 at 12:53 pm

    As usual, the casteist PMK shows what this issue is all about. Humiliating Brahmins, which is the sole issue on which all “Dravidian” parties will vehemently agree upon. Check the following link where the PMK cadres distribute sweets in Mylapore to celebrate the judgment. Why Mylapore you ask? Because it is one of the few places in TN where there is some concentration of Brahmins left. Of course no Brahmins rioting in the streets etc because that is a privilege also “reserved” for those Dravidian parties. I still do not get this “oppression” rhetoric of PMK. Aren’nt his folks bashing about Dalits in north TN? But again, that must be because they are themselves “oppressed”..

    http://chennaionline.com/colnews/newsitem.asp?NEWSID=%7B9BF2ADC4%2DA8DC%2D47DE%2DB28C%2DC6A7731B432F%7D&CATEGORYNAME=CHN

    Welcoming the verdict, Dr Ramadoss, who has been championing the cause, said the verdict was yet another victory in the journey towards achieving social justice.

    He said he had directed the PMK cadres to celebrate the victory by distributing sweets towards the State and the cadres distributed sweets at Luz area in Mylapore

    However, the Supreme Court’s verdict that if the basis of reservation was caste, the creamy layer among these castes, should be excluded from the benefit of reservation, was dangerous.

    ”Nowhere in the Constitution it was mentioned that the well off among the BCs should be denied reservation benefits”, he added.

    Dr Ramadoss called upon all political parties to oppose this.

    Earlier, PMK President G K Mani drew the attention of the State Assembly about the landmark judgement given by the Supreme court and thanked all those who lent their support for this cause.

    Later, members cutting across party lines, welcomed the judgment by thumping of desks, after Leader of the House and Finance Minister K Anbazhagan informed the House of the Apex court order. -Bureau Report

    Published: Friday, April 11, 2008

  3. realitycheck said, on April 11, 2008 at 1:15 pm

    Actually the PMK is only half way home. The DMK / Congress are already home. A little premature to distribute sweets in Mylapore. This is not 1960.

    The real struggle for PMK starts now because with or without creamy layer exclusion the MBCs will be clobbered by OBCs (not-brahmin upper castes in TN lingo). This victory is mainly due to the untiring effort of Dr Ramadoss (both father and son).

    When the dust settles the PMK is answerable to its community members.

  4. confused said, on April 11, 2008 at 8:41 pm

    ”Reality Check will not be on that second leg”

    You planning to quit blogging?

  5. jack handey said, on May 15, 2008 at 11:13 am

    […] a war was lost. All for the want of a horse-shoe nail.??? You have surely heard the above lines orhttps://realitycheck.wordpress.com/2008/04/11/quota-for-want-of-a-horseshoe-nail/ Updated 5/5: Monroe principal took leave for e-mail incident The Doings Clarendon Hills The Monroe […]


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