The Supreme Court judgment has an important bearing on the entire system of higher education, especially in institutions of excellence, because it challenges the idea that merit exists in a vacuum.
The decision of the Supreme Court Constitution Bench earlier this week in the case of Ashoka Kumar Thakur versus the Union of India and Ors provides us with useful insights into the ways in which the issue of reservation has been argued in courts.
The 93rd Amendment Act, 2005, by which Article 15(5) was inserted in the Constitution was challenged in the Supreme Court, as also was the Central Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of 2007) which provides for reservation in admissions to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes to certain Central institutions established, maintained or aided by the Centre. Section 5 of Act 5 of 2007 provides for an increase in seats in the open category seats to “compensate” those “lost” to reservation.
The arguments challenging reservation can be summarised as follows: admissions to educational institutions should be based purely on merit; the impugned Act attempting affirmative action is to be treated as “suspect legislation” — unreasonable, arbitrary, capricious and contrary to Articles 14 and 21 — and must undergo the tests of “strict scrutiny” and “compelling state necessity;” the “creamy layer” principle should be applied to the OBCs as well as the SCs and the STs; non-exclusion of the “creamy layer” is illegal; quota should not be a punishment for the unreserved categories; minority institutions should not be exempt from the “common burden of reservation” for the SCs, the STs and the SEBCs; the OBCs have not suffered the indignities borne by the SCs and the STs and therefore cannot be treated on an equal footing; since the problem of backwardness is located in the arena of primary education, reservation is necessary only up to the plus-two level, after which individuals join the ranks of the forward by virtue of education; and the provision of additional seats amounts to 100 per cent reservation (since the increase of seats to assure undiminished access to the unreserved category will match exactly the seats reserved).
The arguments defending quota focussed on a liberal interpretation of the Constitution and urged the court to consider the fact that the provision of reservation to disadvantaged groups was being made 56 years after the Constitution came into force; in terms of proportion, the OBCs and the SCs and the STs comprised more than 27 per cent and 22 per cent of the population — the reservation proposed, therefore, was not disproportionate to the comparative population figures; the concept of “creamy layer” could not be applied to the SCs and the STs, while for the OBCs, its application was restricted to the ambit of Article 16(4) with specific reference to employment; applying the “creamy layer” principle to educational institutions would mean that the advanced castes would eliminate any challenge to their leadership in the professions and services; it is utopian to expect that by ignoring caste it would perish because the caste system plays an important role in every conceivable activity of private life. Importantly, it was also argued that the primary objective of reservation was to bring about equality of status and opportunity in order to create a level-playing field among different groups positioned differently on the social scale — not poverty alleviation or universal education, which is part of a very different set of issues.
There was an acknowledgement on both sides, however, of the intractability of caste and the difficulty of mapping its contours exactly. Should one look for vulnerability to atrocity? Is there a nexus between caste and occupation? Is education the solution to social exclusion? Does wealth bridge barriers between castes? What is the character of the class-caste nexus? Can it be reasonably assumed that there will be a correlation between the Socially and Educationally Backward Classes and the disadvantaged castes?
The issues discussed by the judges in four separate judgments centred on questions of constitutionality of the 93rd Amendment, especially in terms of its implications for the minority and unaided institutions and its conflict with the provisions of Article 15(4); the definition and identification of the backward classes, especially the relevance of the method adopted in Indra Sawhney (Mandal case); the place of caste in the determination of backwardness; and, most importantly, the relevance of the troublesome concept of “creamy layer” to reservation for both the SCs/STs and the SEBCs .
While all the judges upheld the constitutionality of Article 15(5), the Chief Justice observed that the question whether any exemption granted by the provision was violative of equality guaranteed by Article 14 would arise only when an educational institution that believed that its fundamental right to equality had been violated by the exemption accorded to the minority institutions petitioned the court. No institution had raised this argument on its own behalf. Justice Dalveer Bhandari, taking the opposite course that led to a similar conclusion, severed the reference to unaided institutions although no such institution approached the court, “in the larger public interest,” arguing that the inclusion of unaided institutions contravened the protections under Article 19 and therefore violated the basic structure.
On the central question of the definition of backward class and its identification, especially the validity of using caste to identify class, the Supreme Court reiterated that it arrived at a point in Indra Sawhney, after a string of cases starting with Champakam Dorairajan, that caste could be the starting point for determining socially and educationally backward classes. Any reference to the backward classes immediately thrusts to the centre of the debate the concept of “creamy layer.” Chief Justice K.G. Balakrishnan held that while the “creamy layer” principle was not part of the general principle of equality, it had the limited and specific purpose of identifying the backward classes entitled to reservation. It would have to be applied as the court was bound by the decision of the larger Bench in Indra Sawhney. However, he observed, the SCs and the STs were a separate class that could not be brought within the ambit of the “creamy layer” identification.
Justice Bhandari, however, held differently in the matter of “creamy layer” with respect to the backward classes, that the principle of “creamy layer” emanated from the broad doctrine of equality itself. He expressed no opinion in the matter of SCs and STs, although he discussed it at some length.
In a postscript to his brief judgment, Justice Raveendran, concurring with the judgment of the Chief Justice, raised and left open the question whether members of the reserved categories who get selected in open competition on merit should be counted against the 27 per cent quota under an enactment enabled by Article 15(5). And he, along with Justice Bhandari, ruled that unfilled seats should revert to the general category.
Counting persons who gain admission in the open category against the quota would defeat the purpose of reservation and, in effect, decrease the quota below the stipulated level. Also, this measure would make the very principle of “creamy layer” redundant, directly contradicting the present stand of the court. The exemption of institutions listed in the Schedule to Act 5 of 2007, the minority institutions and, now, unaided private institutions, goes against the spirit of equality and considerably shrinks the space for entitlements of persons from vulnerable groups. It is not so much a question of the measure of equality between institutions inter se that is critical in access to education, as of the measure of equality between citizens differently placed because it is citizens who bear the brunt of discrimination and exclusion. After all, reservation is an inseparable part of the principle of equality and where equality is concerned, no institution can be outside its ambit.
Notwithstanding the above concerns, this judgment has an important bearing on the entire system of higher education, especially institutions of excellence, because it challenges the idea that merit exists in a vacuum – outside of social location and equality of opportunity. Opening these institutions to Dalit and Adivasi students, especially, will bring in dimensions of diversity and counter-hegemonic thinking that will enrich the quality of education imparted there and strengthen democracy.
(Kalpana Kannabiran is Senior Professor, NALSAR University of Law, and Member, Expert Group on the Equal Opportunity Commission, Government of India.)