JUDGMENT ON OBC RESERVATION

Justice Rajindar Sachar
Chief Justice (Retd.)High Court of Delhi

The Constitution Bench Judgment on upholding reservation in Higher Educational Institutions has come on expected lines, in the light of judgment in Indira Sawhney case (1992). Though 27% quota for OBCs was loosely challenged, but this plea was an empty one because latest Government of India National Sample Survey data (2004 – 05) shows that 41% and 43% constitute OBCs amongst Muslims and Hindus respectively.

Of course everybody knew that the real issue was “Would court accept Government's partisan approach (no doubt influenced by higher echelons of OBC political leadership) that the principle of creamy layer amongst OBCs should be dispensed with?” The court has given short shrift by holding: “Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) and also of Article 16(4).”

It is unfortunate that because of partisan politics some are still unwilling to accept this equitable decision and thus put in jeopardy the implementation of this overdue measure for poor segments of OBCs. As it is, the partisan approach of higher segments of OBCs has already done considerable damage to SC/ST students. This is shown by the fact of how all the parties indulged in conspiracy of silence with regard to the benefit that was to accrue to SCs/STs under this very Government circular from last year.

It may be noted that though the Supreme Court had given interim stay regarding OBC admission, there was no stay regarding SC/ST quota, which could have been filled up but no one spoke about it and it has unnecessarily gone waste for last year. This indifference to SC/ST quota exposes the hypocrisy of many politicians that when they are talking of uplifting the poor, it is the caste angle which has primacy. It should be noted that the extra seats created for 2007-08 were 12216 of which 9468 were for the OBCs, 1832 for SCs and 916 for the STs. Thus, it was possible for the Government to fill up the quota for SC/ST (a total of 2748 seats). The Management of Institutions had no objection because they had already made arrangements for filling up 12216 seats.

But surprisingly, no effort was made to fill up SC/ST quota last year. This anomaly was felt very strongly by Peoples Union for Civil Liberties (PUCL) which by its letter of May 4, 2007 brought this fact to the notice of the Prime Minister, Mr. Manmohan Singh, HRD Minister, Mr. Arjun Singh, and others including Ms. Mayawati, the Chief Minister of U.P., expressing its anxiety and surprise that so far the Government had not taken any steps to fill up the seats reserved for SCs and STs when there was no restraint against them. Unfortunately, for reasons not clear, no steps were taken with the result that SC/ST lost last year's quota.

Again from the current press reports it appears that some political groups are trying to find ways as to how can the creamy layer be included in the quota (a useless exercise in view of judgment). Again no attention is being paid in this process for the enrolment of SCs/STs which is permissible? Why has the government not asked the institutions to go ahead with their admissions? Whatever the angularities regarding OBCs can be worked out but why should SCs/STs be denied admissions in higher institutions again for the second year? Why must partisan politics always override equity and fairness to the most neglected? Is it because political leadership is under pressure from the creamy layer of OBCs not to let SCs/STs take benefits if the same are not at the same time available to OBCs? Is this social justice – is it not pandering to caste politics and vote gathering mechanism. But why is SC leadership not exposing this game? Even Mayawati is playing cool on this!

I feel that nervousness on the question whether if an OBC is a graduate, but economically below the guidelines of 2004 (updated to the present inflation index) he will not be eligible for admission in OBC quota, is misplaced. Creamy Layer touchstone is not only at the educational level but also at economic level. Thus, it would be unacceptable and unjust if a conscientious hardworking OBC poor were to pass graduation by studying even under street lights (instances have actually happened) he should be deprived of the benefit of reservation even when his family income is below the limit. As the Court has said about the exclusion of creamy layer that “one of the main criteria for determining the socially and educationally backward class is poverty”, and that “creamy layer has no place in the reservation system”.

I feel prima facie family income level of 2.5 lakh per year fixed in 2004 (updated by inflation index) can be the upper most limit for being retained in non- creamy layer. To call it inadequate would be a mockery considering that statistics show that OBC Muslims (82%) and Hindus (80%) are below the per capita consumption of Rs. 20 per day – as it is even national average of poor whose per capita consumption per day is Rs. 20 constitute about 77% of total population.

The Court has also given direction that ‘there must be a periodic review as to the desirability of continuing with the reservation, and suggesting possibly five or ten years'. In this respect it seems to me that this direction is hasty, considering that the directive of Article 45 of the Constitution (now made a Fundamental Right) that the State shall provide free and compulsory education until the age of 14 years remains woefully a distant dream, coupled with the fact that according to Census of 2001, national literacy (which in reality only means writing your name) is 65%.

Justice Bhandari's suggestion that legislators should be outside the ambit of reservation is sound both in principle and equity. Legislators who proclaim their first loyalty to the common man must show their genuineness by making this voluntary gesture – as it is, they are certainly above the limit of social/economic backwardness.

Another fear expressed is that if creamy layer is excluded the quota for OBCs will remain unfilled. I would, therefore, suggest that if after filling up from non-creamy OBCs, any seats are left out, they should be filled up from economically weak and backward non-creamy segment of non-OBCs. If still the quota remains unfilled, those vacancies could be filled up by creamy layer of OBCs, but not otherwise.

The Court has rightly not given any directions regarding Minority Institutions. But the equity demands that these institutions on their own should provide proportionate quota for non-creamy OBCs amongst their own Minority on the same terms as for non-Minority institutions.