People's Democracy(Weekly Organ of the Communist Party of India (Marxist)
April 08, 2007
Ensure Implementation Of OBC Reservations
THE Supreme Court of India’s decision to stay the implementation of reservations for other backward classes (OBCs) in centrally-run educational institutions raises certain serious issues which merit the reasoned consideration of the entire country.
The decision to grant 27 per cent reservation for OBCs in educational institutions is the direct consequence of the near unanimous amendment to the Indian Constitution adopted by both houses of parliament. This amendment brings into operation a new law of the land making it mandatory for all educational institutions, both private and public, except minority institutions as defined by the Constitution, to implement 27 per cent reservations for the OBCs. To begin with, the government decided to start this process, in centrally run educational institutions, this academic year while, at the same time, expanding higher educational facilities so that the quantum of the non-reserved categories is not reduced. The Supreme Court has, unfortunately, stayed this decision raising serious constitutional issues.
Under the Indian Constitution, the roles, duties and responsibilities between the three wings of our parliamentary democracy – the legislature, the executive and the judiciary – have been judiciously delineated. The legislature vested with the power of making laws; the executive vested with the authority to implement and enforce these laws; and the judiciary to interpret and oversee the enforcement of these laws with the aim of delivering justice to the people. The judiciary, therefore, cannot make the law. Once the legislature makes the law, it is mandatory upon the executive to implement it. The Supreme Court has now stayed such implementation and allegedly cast doubts on the legislature’s competence in making the law. The country needs to seriously revisit this issue.
Further, this stay order by a two-judge bench of the Supreme Court appears logically inconsistent with this very Supreme Court’s nine-judge bench that, on an earlier occasion, approved 27 per cent reservations for OBCs in government jobs with the exclusion of the creamy layer. That judgement of the Supreme Court was based on the central government’s (the executive’s) decision to implement the recommendations of the Mandal Commission report. The current decision of the government to extend this to educational institutions is based on these very same Mandal Commission recommendations. If the former is correct, which it is, according to the collective wisdom of a nine-judge bench, then questioning the latter by a two-judge bench is, indeed, inconsistent and defies the wisdom of the earlier judgement. If reservations in jobs is correct, then how can reservations in educational institutions be wrong? If reservations in educational institutions are wrong, then how can reservations in jobs be correct?
Those who argue that the Supreme Court has not negated reservations for OBCs in educational institutions, but only questioned the basis for the quantum of 27 per cent need to consider the following. The argument that since reliable estimates of OBC population are not there or that conflicting estimates exist questioning the figure of 27 per cent need to note that the figure of 27 per cent did not arise from any physical estimation of the OBC population. Prior to the Mandal Commission recommendations and subsequently, there continues to exist a 22.5 per cent reservation in jobs and educational institutions for SCs and STs. On a different occasion, the Supreme Court had ruled that the quantum of reservations in any case should not exceed 50 per cent (the apex court, however, made an exception of those states where over 50 per cent reservations already exist like in Tamilnadu etc). Given this, no quantum of reservation for the OBCs could exceed 27.5 per cent and in its wisdom, the Mandal Commission recommended 27 per cent.
This being the case, any estimation of the OBC population that is above 27 per cent cannot question this quantum. Varying estimations of the OBC populations are all above the 27 per cent mark. The Mandal Commission had estimated the OBC population to be 52 per cent. It is a fact that the last caste-based census was held way back in 1931. When the Mandal Commission itself sought a fresh demographic estimation of the OBC population, it was correctly pointed out that soon after independence, in the early fifties, Sardar Patel had prohibited caste enumeration in the census. In the absence of data later than that of 1931, the Mandal Commission made its estimation on the basis of detailed questionnaires, demographic projections and using the well-defined lists of OBCs that exist in almost all states. It is, in fact, on the basis of these lists that in some states, reservations for OBCs in educational institutions already exist.
Hence, by all counts, if the OBC population is anywhere about 27 per cent, then this quantum cannot be questioned. Would an exact count today be the basis for the apex court to increase the quantum of reservations from 27 per cent to a proportion that exactly matches the OBC population?
Interestingly, at the time when reservations in jobs for OBCs was proposed, the opposition coming from the same quarters as it does today, suggested that in order to make job reservations effective, it would be necessary first to train and equip the OBCs with skills so that they can qualify for these jobs. The country was told to first implement reservations in education, so that the OBCs would qualify to utilise the reservations in jobs. Indeed, today, the very same sections rise in opposition to reservations in education.
Apart from the issues of social oppression contained in the obnoxious caste system that prevails in the country and the associated prejudices, the issue of reservations raises emotive passions because of the scramble to get a share of the shrinking pie. If jobs and education for all are ensured, then reservations simply ceases to be an issue at all. In a situation where opportunities are shrinking, naturally, there is a scramble by all sections to retain their share. In such a scramble, it is always the marginalised and the deprived who get left behind worsening their already vulnerable livelihood status. Reservations are necessary to provide some protection and relief to these sections in such a situation. Reservations, thus, are not an act of charity. They constitute the necessary, though not the sufficient, measure to enable the socially handicapped sections of our society to become part of the mainstream, where they can exercise their right to “equality of opportunity” – the hallmark of any modern State.
Through these columns in the past, we had discussed the need to arrive at a judicious balance between quantity, quality and equity in the Indian education system. In this particular instance, the provision of reservations for OBCs was to be accompanied by an expansion in the facilities to ensure that the quantum of non-reserved seats will not be reduced. The government had worked out the modalities and many premier institutions like the IIM Ahmedabad had publicly announced their preparedness to implement OBC reservations having expanded the quantum of student intake. This year’s budget has provided an unprecedented increase in educational outlays, being 34 per cent for higher education. Apart from increasing the facilities, this should also be put to good use in improving the quality of education.
Thus, a blueprint (though, of course, being far away from providing education for all) for maintaining a balance between quality, quantity and equity had nevertheless been drawn up and was in the process of being implemented when the apex court’s stay order arrived.
It is incumbent upon the government (executive) to take all necessary measures required to implement the parliament’s (legislature) legislation. As we go to press, the government has indicated that consultations with all political parties would be undertaken to work out the manner in which this legislation that flows from the 93rd Amendment to the Indian Constitution would be implemented. This needs to be done in right earnest urgently.