Reality Check India

Will the minority quota in the Supreme Court pass scrutiny ?

Posted in Uncategorized by realitycheck on August 4, 2012

You may have been following the journey of the 4.5% minority quota in Central Educational Institutions (IIT/AIIMS/etc)  announced by the UPA Government.  To quickly recap, the quota was scrapped by the AP High Court and on appeal the apex court refused to stay the judgment. The matter has now been posted before a constitution bench of the Supreme Court.  Lets take a look at the substantial issues involved in the case.

Why was the quota denied by the AP High Court

The government appears to have been hasty in implementation of this quota. The quota was struck down on three major grounds.

  • No legislative authorization. The quota was announced by an executive order (an office memo) instead of by law.
  • No homogeneity except on religious basis. The quota clubbed together widely disparate communities like Muslims and Christians. Which was a clear indicator to the judges that the quota was implemented on religious grounds only.
  • No data.  Before tinkering with the quota, the government did not consult the NCBC (National Comm for Backward Classes). This procedural flaw seems to have sealed the fate of the case.

For further reading, I recommend this excellent interview with K. Vivek Reddy who represented the petitioners in the case.  Make sure you also listen to the podcast.

Where are we now ?

First of all, it is important to note that this is a sub-quota.  This means that minority communities already in the list of backward classes are sought to be plucked out and allocated an exclusive quota. This happens by reducing the quota for those groups remaining by 4.5% so the overall quota does not exceed the 50%  ceiling.  Once again the point to keep in mind is these minority communities already have access to a quota.  The whole issue is about rearrangement.

Sadhanand Dhume had an article in the Wall Street Journal, which was a bit light in my opinion.  I want to highlight this piece because  it demonstrates a common fallacy.

On all these occasions, the political class blundered by viewing the community through the prism of faith rather than nationality. Muslims are Indians and the best way for India to integrate them is to strive to treat them as individuals, not members of a group. Indians disregard this commonsense notion at their own peril. This means stressing equality of opportunity rather than equality of outcomes. Better schools in Muslim-majority districts, along with privately endowed fellowships for bright students from Muslim-dominated schools (but open to all), are a start.

Source : WSJ

Well this is against Justice 101.  The reality is that the quota system exists and the stakes are huge. Talk to any government employee about the roster system.  So  turning a blind eye to dominant communities in the OBC list while exhorting the muslims to settle for scholarships is unjust.   In fact, in Krishnaiah Vs Govt of India (2012)   the National Commission of Minorities argues that the entire quota system is anomalous and assuming the reality of such a system, their group interests need to be safeguarded. This is a pretty strong argument as we shall see, one that cannot be quenched easily.

…………..The Commission was of the view that ideally the criteria for reservation should be socio-economic backwardness and not religion or caste. Further, Article 16(4) should be the basis for providing reservation benefits to minority groups who are socially and economically backward.  Reservation should be provided only as a short term, time-bound measure for enabling greater participation, both in education and employment. As we have mentioned earlier, the lists of SC/ST and OBC have not been scientifically prepared  ither on the basis of a proper survey or reliable data on socio-economic status of a particular caste or class. Therefore, the entire system of reservation, including that for SCs/STs and OBCs needs to be overhauled.  Reservation as available to SCs and STs is open-ended as it is available to all belonging to the category irrespective of income, educational and economic status. OBCs enjoy 27 percent reservation in employment, though creamy layer is excluded.  The norms and methodology adopted, as pointed out in Chapter-VIII is full of anomalies and hence amenable to large-scale abuse. For this reason, the better off among the groups take advantage of reservation at the cost of socially and economically backward and deprived.  It is, therefore, necessary to limit benefits of reservation to the socially and economically backward only.

It is important to note that the NCBC has not revised its list nor is any public data available regarding the progress made by various communities in the OBC list. This leads people like Owaisi to make impenetrable arguments.

Owaisi’s challenge

Soon after the AP High Court judgment, an enraged Asaduddin Owaisi asked Muslims to challenge the basis of the entire OBC quota.

“The Centre provided reservation to minority community on the basis of empirical data prepared by a panel headed by ex-Chief Justice of India Ranganath Misra, which was constituted by the government to look into the issues of linguistic and religious minorities. But, basing on which empirical data did the OBCs get the 27 per cent reservation? Is it fair?” Owaisi asked.

..

Describing the High Court judgment as erroneous, he said the court said there was no homogeneity between any two minority groups. “In such case, what homogeneity could one find between any two castes among the 93 castes included in the OBC list like say, Yadav and Kurma or Gouda and Munnuru Kapu?” he asked. There was discrimination on the part of the court while questioning the homogeneity between two minority groups.

Source : IBN

From a legal perspective I find Owaisi’s arguments very persuasive.  If they are weak, I havent heard a substantial rebuttal of what he is saying.   Look at this way : If the undivided quota which contains Muslims and Christian groups can be homogeneous, it is difficult to sustain an argument that these groups lose their homogeneity out of the group.  In other words, the undivided list does not confer homogeneity to its constituents.

The most critical case

I strongly believe this quota issue is one of the most critical cases to hit our country.  The court has the unenvious task of adjudicating this claim within the walls of a  broken system made permanent by habit. In any case, the UPA government seems to be better prepared this time. Here is the data they seem to have collected.

  • Former CJI Ranganath Mishra’s report (interalia recommended 8.4% sub quota)
  • Former Delhi HC CJ Rajindher Sachar’s report (concluded Muslims are worse off)
  • representation data for Sikhs, Christians, Muslims in recent admissions 2009,10,11 from IIT/AIIMS/JNU/DU etc

 

Here is the crux of the matter. All these surveys fall afoul of equal protection guaranteed under Article 14 of the constitution. This alone should be sufficient to throw out the minority quota.

Equal protection

Think about what these surveys (Mishra, Sachar, Representation) measure.  They take a target group (Muslims/ Christians) and measure them against the rest of the population. For the moment assume that the measurement is robust and it isnt.  Based on this comparison they draw certain conclusions and recommend exclusive reservation as an antidote for whatever ill they find.

The problem is that there are 2159 classes in the central OBC list. Out of this, 52 (Muslim) + 22 (Christian)  + 2 (Sikh) are singled out for measurement with a view to providing them relief.  There is no reason for this singling out other than the fact that they are distinguished by their religion.  Theoretically you could pull out an alternate group of 55 (Gounders,Dhivar,Kahar,Bhoi,..) + 22 (Keer,Mallah,..) + 2 (Mehra,..) and you could arrive at the same conclusions and make a similarly strong case for a special 4.5% quota for this group.  So the very act of measuring a select group while denying the same measurement to other groups is ultra vires to the constitution because it denies equal protection of law to all these groups that are left out. If the Supreme Court glosses over this; then floodgates are open for any random combination of communities to form alliances and demand measurement only for their group on their terms.

See the irony here.  Owaisi is now the reasonable man because he seeks accommodation for his community within a platform widely acknowledged to be broken.  To allow that would compromise the constitution and cause injustice to those who were not similarly measured, to deny him would be unjust because he atleast has some data, the others have none.

What can be done ?  Essentially we have arrived at a fork in the road. The only way out is to comprehensively measure every community, not on the basis of census surveys but on representation in services and education.  Because imbalance in  representation is the purported aim of this whole social justice exercise.  Once all communities in the OBC List are tabulated, the group can be split into two or three. Minorities would automatically get into the group which makes it easier for them to access the benefits. But others would have the chance too.

Will the court stand up and deliver ?
 

 

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6 Responses

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  1. plainspeak said, on August 4, 2012 at 7:39 pm

    Good post. Regarding the point that Owaisi is making about how 93 different castes could be homogeneous and Muslim OBC groups can’t be homogeneous, I have a theory.

    Consider that castes are beads of a necklace. There are 100 beads. A homogeneous group is one which has all constituents(beads) side by side. So, if you choose, say 10 beads out of those 100. They might not be adjacent to each other. So, in that sense 100 beads as a group is homogeeneous, but the randomly chosen group of 10(minority OBCs) need not be homogeneous.

    Anyway, I agree with your solution of having data about representation of castes before giving reservations.

  2. rc said, on August 5, 2012 at 2:26 am

    >> So, in that sense 100 beads as a group is homogeeneous

    I like your analogy, but there is a flaw. It appears that necklace with all the beads is more homogeneous than plucking out specific ones. This is deceptive.

    The homogeneity requirement is based on the idea that the beneficiary group can be treated as a class. If beads are of wildly disparate abilites, then it doesnt matter if they are part of the larger necklace or have been plucked into smaller ones. This is the argument NCRLM is making. GIven that the beads arent of equal ability (due to compromised classfication), we want a smaller necklace for ourselves keeping out the beads we think are eating up our space.

  3. […] Will the underground quota in the Supreme Court pass scrutiny … […]

  4. Kshitij said, on August 5, 2012 at 6:31 pm

    “…the group can be split into two or three. Minorities would automatically get into the group which makes it easier for them to access the benefits. But others would have the chance too….” umm, wouldn’t it be better that the division is done based on the %age of the 2159 classes in the central list that you mention instead?

  5. Kshitij said, on August 5, 2012 at 6:39 pm

    Oh on second reading, I think that’s what you meant. This is not the first time I have to read again to understand the solution you propose 🙂 Maybe it’s because the solution isn’t as detailed as the rest of the post or maybe (the sad thing is that) the solution is logical enough to be that precise unlike the noise surrounding the issue!


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