People's Democracy

A Welcome Judgement On OBC Reservations

K K Ragesh

Hypocritical Decry on Merit

The argument that the academic quality of doctors and engineers created through the process of reservation is inferior is entirely unfounded. In all the southern states reservations for SC-ST and OBC were ensured in education many decades back extending up to 50 percent to 69 percent and the experience there shows that academic standards are much above those in other states where reservations are limited only to the SC and ST. In these states more than 80 percent marks are required for admissions in majority of the professional institutes including for reserved seats. When all students have to appear for the same year-end examination in order to obtain their degree, how can anyone argue that such affirmative actions lead to deteriorating standards? It is not the input but essentially the output that determines excellence. This hypocrite fretfulness about academic excellence has never been expressed on the mushrooming of private professional colleges including medical colleges where merit is defined and substituted with crude money power.

The two-member division bench, while issuing a stay on the implementation of reservations last year made many subjective observations. Without any material evidence the bench said, �reservation cannot be permanent and appear to perpetrate backwardness.� Blaming the government for enacting a law to provide reservations, the bench did not hide its intolerance and said �nowhere in the world, castes queue to be branded as backward. Nowhere is there a competition to become backward. With this act the subject of the equality is unduly put under strain.� On the government submission that the 1931 census is the basis for fixing 27 percent quota for OBCs, the bench said what might have been the data in 1931 census cannot be a determining factor now. The court did not consider the fact that reservations are already provided in states like Maharashtra, Uttar Pradesh, Punjab, Himachal Pradesh and Gujarat and in all southern states on the basis of the same material facts and data. But the bench eagerly stated that there is no explanation for the lack of firm data for determining backwardness and held that �unequals are treated as equals�. The court asked, "You have waited for 57 years. Why can't you wait for one more year"? And hence undermined its own principles that delay in justice would be a denial of justice. The Mandal commission had visited many states and conducted several studies before finalising its report. The SC endorsed that report and since then reservations in employment have been in force. Irrespective of all such facts the bench was eager to put the law on hold on the basis of its own subjectivism.

When the case was referred to the constitution bench headed by the chief justice, the anti-reservation camp repeated the same arguments. They invented that reservations �would have wide ramification and divide the country on caste basis� hence made an impression that it is reservations that have fashioned caste! It was also argued that reservations would result in anarchy and affect communal harmony, thereby sabotage the constitutional right to equality. It was further argued that the 93^rd constitution amendment infringes upon the rights of private institutes under Article 19(1) (g) to profess practice any trade occupation or business and would nationalise private institutes. The court did not entertain such arguments. It was further argued that the amendment itself was against the basic structure of the constitution as it infringes upon the fundamental right to equality and occupation. While endorsing the powers of the parliament, the remarks made by the chief justice K G Balakrishnan are extremely significant. He observes, �The judgment in Kesavananda Bharati's case clearly indicates what the basic structure of the constitution is. It is not any single idea or principle like equality or any other constitutional principles that are subject to variation, but the principles of equality cannot be completely taken away so as to leave the citizens in this country in a state of lawlessness. But the facets of the principle of equality could always be altered especially to carry out the directive principles of the state policy envisaged in part IV of the constitution. The constitution (93^rd amendment) act, 2005 is to be examined in the light of the above position. The basic structure of the constitution is to be taken as a larger principle on which the constitution itself is framed and some of the illustrations given as to what constitutes the basic structure of the constitution would show that they are not confined to the alteration or modification of any of the fundamental rights alone or any of the provisions of the constitution. Of course, if any of the basic rights enshrined in the constitution are completely taken out, it may be argued that it amounts to alteration of the basic structure of the constitution. For example, the federal character of the constitution is considered to be the basic structure of the constitution. There are many provisions in the constitution dealing with the federal character of the constitution. If any one of the provisions is altered or modified, that does not amount to the alteration of the basic structure of the constitution. Various fundamental rights are given in the constitution dealing with various aspects of human life. The constitution itself sets out principles for an expanding future and is obligated to endure for future ages to come and consequently it has to be adapted to the various changes that may take place in human affairs�.

Reservation in

Private institutions

Even though the court did not take a conclusive view on reservations in private institutions, the above observation indicates the vivid justification for the 93^rd amendment even on the question of private institutions. Ensuring reservations and social control is the factual objective of the 93^rd amendment. The amendment is a consequence of the Pai case and subsequent case verdicts that sought to restrict reservations and regulations in private institutes. In the statement of objects and reasons of the 93^rd constitution amendment it has been stated that: "At present, the number of seats available in aided or state maintained institutions, particularly in respect of professional education, is limited in comparison to those in private unaided institutions. To promote the educational advancement of the socially and educationally backward classes of citizens, i.e., the OBCs or the Scheduled Castes and Scheduled Tribes in matters of admission of students belonging to these categories in unaided educational institutions other than the minority educational institutions referred to clause (1) of article 30 of the constitution, it is proposed to amplify article 15�. The 93^rd amendment will be momentous only if it is ensured in private institutes. The present distinctive verdict will truly be historic once the court endorses reservations in private institutions. That will be a correction of many past verdicts that were tuned on the lines of neo-liberal perceptions. The true spirit of the constitution will only be hailed through such a pro-people interpretation of the constitution.

Reservations are not an absolute remedy to eradicate social inequalities but they are only a beginning. The caste system itself is perpetrated and linked with the ownership of land and its imbalanced distributions. The social oppression spearheaded by the caste system can wholly be eradicated only through comprehensive land reforms and true democratisation of society. The OBCs have been denied their due share in jobs and education so far and it is the general category that dominates these spheres. Reservation can lead to a road of equality and equal access. But true social justice and equal access can only be ensured through government policies, which guarantee job and education for all.

In the backdrop of the present judgment the government has to immediately initiate a legislation to regulate fees and admissions and to ensure reservations in private institutions. As far as professional institutions are concerned, the total figure of private institutions is more than government institutions. Efforts by state governments to ensure social justice in private institutions have not materialised due to judicial intervention. Unless and until reservations are ensured in private institutions the true objective of the 93^rd amendment cannot be materialised. However, a mere provision of reservation will not enable the admission of deprived section students to higher and professional institutions. The exorbitant fee chargeable in such institutions is unaffordable for students from backward sections. Hence, there have to be strict regulations on fees. Social justice in education can only be safeguarded by bringing private self-financing institutions under strict social control and by extending reservation and ensuring affordable fee in such institutions. Progressive and democratic sections have to rise immediately for ensuring that such an objective is materialised.

(Concluded)