Caste, Courts and Reservations

By staying the operation of the Central Educational Institutions (Reservation in Admission) Act 2006, the Supreme Court has ensured that “elite” central institutions of higher learning such as the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs) remain elitist for at least another year. (The admission processes at the IITs and the IIMs for the academic year 2007-08 would have been completed before the final hearing on the case, scheduled for August 2007.) The stay on the operation of the Act has been granted on two grounds. First, that there could be a sense of arbitrariness in fixing the quantum of reservation (27 per cent in this case) because the basis for identifying the other backward classes (OBCs), which is the Census of 1931, does not take into account the demographic and socio-economic changes that have taken place over the past threequarters of a century. The second reason for the stay is that by not excluding the “creamy layer”, the 2006 Act envisages determination of backwardness only on the basis of caste; and hence violates the law as upheld in the Indira Sawhney versus Union of India and Others case in 1992.

The presumption (insofar as the Mandal Commission was concerned) was that the OBCs constitute at least 54 per cent of the population. This was done on the basis of the population of those who constituted the backward castes (other than the scheduled castes and scheduled tribes) in the 1931 Census and by projecting those figures. This had to be done because caste-wise information of the population has not been collected after 1931. But, 1931 or 2007, caste remains a relevant category in society and caste identities have remained grounds for discrimination in the social sense of the term. Such discrimination has also led to lack of access to education and has consequently impaired the economic empowerment of a substantially large section of the population. This was acknowledged in the Constitution: Articles 16 (4) and 340 were included in order to explicitly acknowledge the presence of such discrimination and the need therefore to initiate remedial measures. Thus, caste was acknowledged as the basis for determining social and educational backwardness and this was held to be valid by the nine-judge bench of the Supreme Court in 1992 when it upheld the August 13, 1990 office memorandum, partly implementing the Mandal Commission’s recommendation. The bench did not find the quantum of reservation for OBCs in central government jobs (27 per cent) arbitrary, though those reservations were also based on projections from the 1931 Census. It is somewhat baffling that the same argument is now found to be faulty in the case of positive discrimination in institutions of higher education. And stranger is the fact that the two-judge bench has asked the government “to initiate or continue the process, if any, for determining on a broad-based foundation, OBCs, notwithstanding the pendency of the cases before this court and without prejudice to the issues involved”.