Why the quota verdict is smarter than you think

ALOK PRASANNA writes from Hyderabad: In law school, you can’t throw a brick without hitting someone’s opinion on reservation. People take this so seriously that the recent Supreme Court judgment on the OBC Reservation issue (Ashok Kumar Thakur v. Union of India) actually affected people’s moods for the rest of the day, depending on their position on reservation.

Everywhere, the “pro-reservationists” claimed “victory”, shouting paeans of praise of the Supreme Court while the “anti-reservationists” moped around and started drawing up outlines of case comments where they would ultimately show how wrong the Supreme Court was, and why the nation is going to hell.

Moving out of this closeted mad world, we see similar reactions among the political class and the anti-reservation student bodies (most notably Youth for Equality) respectively.

On the one hand, Arjun Singh can’t wipe the smug smile off his face, while politicians of all hues have already begun counting the votes that this judgment has just hatched for them. With inflation, Tibet and a botched nuke deal threatening to sink the UPA Government in electoral mire, Mannu Bhai & co. are happy to clutch at any straws thrown to them.

Youth for Equality has found, as the NBA did before it, that the Supreme Court is a bit of a gamble.

In all or nothing battles such as litigation, “nothing” is a possibility you cannot not prepare for as this link shows, “nothing” was something they were not exactly prepared for. As litigants over the years have found out, firm belief in the righteousness of one’s cause is no guarantee of success at the Court.

Yet, the case, and the involved agitation, is largely irrelevant in the larger scheme of education in the country. Reservations, in a few Central Government institutions, for a few thousand seats is hardly going to cause radical changes in the social fabric of the country or cause too much damage to the already eroding educational infrastructure in the country.

Reading the Supreme Court judgment, most of YfE’s main contentions about “quality” have been sort of accepted by the Supreme Court with the imposition of cut offs for reserved seats as well, and the reversion of reserved seat to the general category if not filled up. In fact the direction to remove the creamy layer from the scope of the reservations means that a large number of the seats are likely to go unfilled since, let us face it, reservations are targeted at the creamy layer.

Don’t be surprised.

Examine the aspect of reservations in higher education institutions closely, and you will realize that it was always aimed at the creamy layer of that particular section in society. After all, higher education is not open to everyone and only those with the pre-requisite educational attainment, funds and the necessary family support (i.e. not having to work immediately after school to support the family) can seriously take up higher education.

As reservations have not been accompanied by a serious effort at increased primary school enrolment and improving access to education, it is with no surprise that one finds that the benefits are cornered a specific advantaged group within the disadvantaged sections. So, when more reservations are announced for more groups (identified apparently on more or less the same grounds as SCs/STs) the immediate beneficiaries are obviously the “creamy layer”.

By excluding the creamy layer, the Court has effectively removed the prime beneficiaries of the reservation scheme from the picture. When Mayawati and the chief justice of India K.G. Balakrishnan, refer to the economically backward among forward castes deserving reservations, they are tacitly accepting that reservations in higher education institutions, in their present form, are aimed at benefiting the creamy layer only.

Those in that creamy layer form a significant chunk of people who can take advantage of the reservations, and by neatly slicing them off the top, the Supreme Court has effectively reduced the scope and ambit of the reservations.

However, the Supreme Court’s decision does not apply to SCs and STs, even though reservations for these groups are also specifically aimed at the creamy layer. The Constitution is very clear on this. Special privileges to SCs and STs are hinged on historical discrimination, and not on specific socio-economic factors as in the case of OBCs. Even if all the reserved seats in a category are cornered by the creamy layer of an SC or a group of STs, it is what the Constitution intends as “just compensation”, if you could call it, for generations of inequity.

It is therefore no surprise that political parties have gone into a huddle trying to figure out how to overcome the creamy layer bit of the judgment. The initial claims of “victory” have been now replaced with much brainstorming over how to skirt around the barriers put up by the Supreme Court.

YfE seems to have disappeared off the radar for a while, especially given the investment into this case that has seen them “lose”, at least on paper.

So, if YfE “lost” the case, Arjun Singh got himself a Pyrrhic victory, the creamy layers of the OBCs were removed from the picture, and the UPA left feeling a bit like G.W. Bush after the ill-timed “Mission Accomplished” photo-op, who really “won” this case?

Who has come out with a net gain, probability of future gains, and no discernible loss in any field?

The answer, as in all such matters, is simple.

Lawyers.