The die is caste

It will take adroitness on the government's part to get out of the corner that it finds itself in, on the issue of caste-based reservations. The Supreme Court has taken a tough stand on OBC (Other Backward Class) reservations by asking for the report of the Parliamentary standing committee on the matter, and then asking how, if the government did not have any data on the matter, it could mandate 27 per cent reservation for OBCs in educational institutes. It is true that statements by judges during a hearing do not constitute a judgment, but the Court has followed this up with a judgment that says "creamy layers", or the well-off among the reserved categories, had to be excluded even in the case of people belonging to the Scheduled Castes and Tribes. A similar question had been asked by the court in the case of OBCs just the day before this judgment.

What makes the government's life difficult, quite apart from the sensitive issue of taking on the Supreme Court, is that its allies are firm there will be no dilution of the existing reservations for the SC/ST categories""which provide for no exclusion of any creamy layer. While the Janata Dal (U) and the Lok Janashakti Party are obviously opposed to this, even the CPI (M), which is all for excluding the creamy layer among the OBCs, is opposed to doing the same in the case of the SC/STs. While many people will accept the inherent logic of the court's position, in that a creamy layer cannot be suffering from endemic discrimination or disability, it has been argued that the original Constitutional reservation scheme for SC/STs did not provide for such exclusion, and that the court has therefore overstepped its bounds in handing down this decision.

A confrontation has been building up between the government and the courts, on the legitimate terrain on which the courts must function. While law-making is the prerogative of legislators, the court's handling of several recent cases (like demolitions in Delhi) makes it plain that it sees its role in a larger context""a point of view that many subscribe to because of the executive's multiple failures of governance. On the issue of caste-based reservations, the government has to reckon with the fact that there is little data to suggest systematic bias against the OBCs. Indeed, the government even has the number of OBCs wrong""while the Mandal Commission had extrapolated some data from the 1931 Census and used generous assumptions to get to its figure of 52 per cent of the population, data from the National Sample Survey as well as the Reproductive and Child Health Survey show the share to be only 36 per cent. Other data show that while OBC representation among top jobs is lower than the OBC share in the country's population, it is commensurate with the OBC share among those who have passed school""which determines eligibility to go to college and then get a good job. Similarly, the data show that the difference in education levels across castes is smaller than the difference among different income groups within those castes""in other words, the creamy layer issue is a real one. Given this, it may be difficult for the government to come up with arguments that stand up to judicial scrutiny. Which may be all the more reason to expect fresh legislation on the subject.