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Forever separate and unequal
April 23, 2007
The government was appealing a March 29 ruling by a division bench of the Court putting a stay on the Central Educational Institutions (Reservation in Admission) Act, 2006, which had established a 27% quota for OBC applicants. The decision had given some hope to those who viewed the OBC quota bill as a harbinger of the death of meritocracy in India.
Regretfully, the Supreme Court decision has at best delayed the inevitable, and the main objection raised appears to be that the proposed quotas rely on data collected in 1931. The Court has not retreated from prior court decisions that have accepted the pernicious notion that quotas do not in and of themselves violate the equal protection clauses of the Indian Constitution.
All is not lost though, and the Supreme Court Justices have laid down a few key markers which can provide a way out of the current morasse created by Arjun Singh and his ilk. Caste- and creed neutral definitions for backward classes which comply with the 'creamy layer' limitations may offer a compromise solution that works. And while this would make neither side happy, it may well be the only viable via media that works in the final reckoning.
Left-of-centre and Communist politicians have been strident in declaring their opposition to the decision, even though the Supreme Court essentially accepted as established law that quotas are Constitutional, and do not violate the prohibition of discrimination enshrined in Article 15 of the Indian Constitution.
India has now officially adopted the dictum of forever separate and unequal. As the Court decision notes, nowhere in the world 'is there a competition to become backward', but vote-bank politics have resulted in a sad but rational outcome that Indians are clamoring to be classified as 'backward.'
CPI-M leader and Politburo member Brinda Karat proffered that the 'the judiciary should not be given so much independence.' It is fascinating to see Indian wingnuts of a leftist persuasion take cues from the American right wing in railing against activist judges. At the very least, Communists would be expected to demand quotas based on economic backwardness and not based on birth, but the vote bank has so corrupted Indian Communism that they too harp on caste-based quotas. Karl Marx must be spinning in his grave to see his followers wanting to perpetuate birth-based class distinctions.
Meanwhile, Arjun Singh's response to student protesters at the Jawaharlal Nehru University was typically Orwellian. 'Our country cannot progress if equal opportunity is not made available to every citizen,' said the honorable minister. The irony of the fact that his benighted quota policy is by definition all about inequality of opportunity was lost on him. At least Ram Jethmalani was being intellectually honest in openly playing the caste war card when he stated in Parliament that 'people of so-called merit must learn that the present society will have to pay for the sins of our ancestors.'
The best hope for Indians who feel strongly about building a meritocracy and delivering on President A P J Abdul Kalam's dream of transforming India by 2020 may be to build a case based on a few key principles which were pointedly reiterated in the Supreme Court's March 29th decision.
For one thing, the Court resoundingly reaffirmed 'the limit on State power imposed by the creamy layer rule and the invalidity of any State action in violation of the same.' The concept of a creamy layer is a Constitutional requirement without which 'the structure of equality of opportunity... would collapse.' Exclusion of citizens who belong to the 'creamy layer' of a backward community from getting the benefits of caste-based reservations is 'categorically... a part of the Constitutional scheme.'
The ruling has thus clearly established the principle that members of a backward community do not ipso facto have a right to get the benefit of quotas, and imposition of the 'creamy layer' rule is mandatory. At the very least, this rule brings a modicum of fairness to enforced quotas by ensuring that the benefits do not accrue to citizens who are not 'backward' in any sense other than on the basis of their birth heritage.
If the Communists and other Left-wingers continue to oppose the 'creamy layer' requirement laid down by the Supreme Court, then they should be held accountable both for contempt of court in Brinda Karat's case as well as contempt of the Communist manifesto.
Even more hopeful was the observation in the court ruling that 'castes may be the starting point for identifying the backward class, but it can not definitely be the sole basis...' Those who have petitioned the Supreme Court should build on this theme and demand that the Indian government should stop reinforcing caste divisions and move toward helping those Indians who are truly backward based on caste-blind and creed-neutral criteria, as behooves a secular nation with a Constitution that prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
It is important to note that backward classes -- and not backward castes -- are given special treatment under the Indian Constitution. The controversial 93rd Amendment only made a special exception for the advancement of 'socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.'
It is very regrettable that the supporters of OBC quotas do not seem to show any interest in helping Muslims and other minority communities, as well as economically backward members who happen to be upper caste by birth. If quotas must be imposed, then these citizens are 'backward classes' in every sense of the term and they surely deserve the same rights as those who belong to OBC communities.
Syed Shahabuddin has rightly made a case for a Muslim OBC quota. He has said that the data compiled by the Sachar Committee is more than sufficient to make the case for recognition of the Muslim community as a 'backward class' within the meaning of Article 15(4) of the Constitution.
Quotas based on caste- and creed-neutral standards that exclude the 'creamy layer' may be the only way to get out of Arjun Singh's casteist chakravyuha. Fairness and meritocracy are issues that should matter to all Indians, and not just alumni of the so-called elite educational institutions.
In the weeks and months to come, all fair-minded Indians should rally political and legal forces so as to not let craven politicos play their game of divide-and-rule. Those who oppose quotas on principle may find this solution to be the least of two evils. And those who truly want to help the economically backward classes -- and not just play vote-bank politics -- should be happy that the injustices of the past will get redress.
Ram Kelkar is an alumnus of IIT Bombay and a Director of the IIT Bombay Heritage Fund (http://www.iitbombay.org). He is an investment professional at a financial firm in Chicago. The views expressed herein are strictly his personal opinions and they do not represent the official positions of any institution.