Editorial: Second thoughts

It is time for second thoughts with regard to the Supreme Court judgment on 27 per cent reservation for the Other Backward Castes. All those, including this newspaper, that concluded in the first flush that this was a victory for the OBCs, have to think again because the riders that the Court has put in place could end up creating an end-result that is quite different from what Arjun Singh may have imagined. For starters, a state like Tamil Nadu has had in place total seat reservations that well exceed the court-stipulated limit of 50 per cent, a limit that has now been underlined by the court judgment. This could well mean that if someone challenges the reservation policy followed in Tamil Nadu, the Court will strike it down. The important point made by the Court is that reservation that crosses the 50 per cent mark violates the "basic structure" of the Constitution. And since it is a Constitutional Bench that is saying so, it is the final word on the matter, and any further Constitutional amendment that tries to get past this limit will therefore be struck down.

Then there is the issue of de-barring the creamy layer, which is what has attracted a lot of attention since last week's judgment. Again, the majority of judges sitting on a Constitutional Bench has sanctified the idea of the creamy layer and its debarment; it has also more or less cast in stone the existing definition of that creamy layer "" which therefore will exclude most of the privileged segments of society. The only leeway provided is for adjusting the income yardstick, in order to recognise inflation and economic growth, and any such adjustment will therefore have to stay within the limits of rationality. The logic of this position is clear and in fact unexceptionable "" if the issue is making it up to people for historical repression, then those who have already pulled themselves out of the repressed category should not lay claim to benefits that should rightfully go to those still suffering from the effects of past wrongs. It must be presumed that these principles will apply, not just to seats in educational institutions run or funded by the Central government, but also to all other educational categories and to jobs as well. In other words, what the Court has done is to define the limits and the criteria for applying reservation.

Having gone so far, the Court has taken the further step of stating that even for the non-creamy layer, the benefits of reservation should be restricted to a reasonable relaxation of the qualifying criteria, not their wholesale discarding. Anecdotal evidence suggests that, for admission to elite institutions, a relaxation of 5-10 percentage marks will probably help fill the allotted quotas, but that may not be true in all cases. And since it is a settled matter that, if the reserved categories expand, then the total number of seats on offer must be similarly expanded so that the non-reserved seats do not shrink in number, any failure to fill the quotas will mean that the unfilled seats become available to the general category "" which then becomes the net beneficiary!

These positions may irk politicians who want to ride the OBC wagon, but the Court's position on the key issues is quite logical. If the end-result is to benefit the OBCs, politicians and policy-makers have to do the hard work. As has become clear during the year-long debate on the issue, the hard work involves improving OBC access to school education so that there are enough qualified candidates for university seats (which today is not the case). But the experience of several decades shows that politicians are more keen on announcing reservations than on making sure that the reservations work as designed. That is the challenge that remains. The issue is not a legal one, it is political and administrative in nature.