The Supreme Court of India has opened a can of worms by pronouncing itself against reservations for the low and middle orders of society (Other Backward Classes-OBCs) in admissions to Central institutions of higher learning. This halts India’s attempt at affirmative action and will further widen the growing divide between the higher judiciary and the executive/legislature. It has rankled political parties virtually across the board.

The judgment comes just when the concerned institutions were preparing to raise the number of admissions by a whopping 54 percent in a phased manner. Now, the admissions process for the next academic year will exclude OBCs.

The government has allocated Rs 3,200 crores to various Central institutions so they can expand the number of seats. This represented an attempt to assuage the anti-reservation sentiment. Even that now stands negated.

India’s upper castes see the judgment as a vindication of their stand in favour of “merit” and against affirmative action itself. Votaries of affirmative action, including OBCs and Dalits, view it as an assault on their aspirations and entitlements.

A contradiction lies at the heart of the judgment. A two-judge bench, comprised of Justices Arijit Pasayat and L.S. Panta, has ruled against the rationale of a verdict of a 9-judge bench in a 1992 case, which upheld OBC reservations in Central government jobs. This verdict’s logic should apply to university admissions too. But the Supreme Court says that OBC quotas mean treating “unequals” as “equals”.

The judgment comes on top of differing opinions handed down by Supreme Court benches, and efforts to play down caste-based discrimination. This is at odds with the evolving global thinking, as reflected in the United Nations Convention on the Elimination of All Forms of Racial Discrimination, which India has ratified.

In February, the Expert Committee of the Convention held that “discrimination based on ‘descent’ includes discrimination… based on caste”, and hence the Convention applies to India. If India is committed to promoting social cohesion and eliminating casteist prejudice, it should honour the Convention and systematically promote affirmative action.

However, the Pasayat-Panta judgment minimises the importance of affirmative action. It bases itself on two arguments. First, there are varying estimates of the proportion of OBCs in India’s population. Their last census enumeration took place in 1931. In the absence of an “objective” determination of the current proportion, the Centre should not have reserved a 27 percent quota for OBCs.

The second argument is more far-reaching. It holds that creating quotas for different social categories is itself invalid, and recommends “a different form of preferential treatment other than quotas”.

This militates against the logic of reservations—not just for OBCs, but for Dalits (Scheduled Castes) and Adivasis (Scheduled Tribes) too, which is integral to the Indian Constitution. But the Court balks at this.

How valid is the talk of indeterminacy or uncertainty about the OBCs’ proportion in the population? Opponents of reservations claim that the 1931 census is outdated and that recent estimates of the OBC population by the National Sample Survey (NSS) and the National Family Health Survey contradict the Mandal Commission’s numbers of 1980.

However, the Mandal Commission did not base itself solely on the 1931 census, the last census to enumerate castes. Mandal constituted a 15-member social scientists’ committee under the chairmanship of eminent sociologist M N Srinivas to identify OBCs. It organised seminars and prepared four schedules, two each for rural and urban areas.

All states were given these for conducting sample surveys in each district of India. The Commission sent out questionnaires to 30 Central ministries too, and published notices in national dailies inviting public responses.

The experts’ committee spelt out 11 different criteria of backwardness, including caste, low education and income, dependence on manual labour, early age of marriage, high school dropout rates, low work-participation rates, etc.

Low income, for instance, was determined on the criterion that the value of family assets and number of families living in kuccha houses is 25 percent below the state average. It also meant that a drinking water source would be beyond half-a-kilometre for more than 50 percent of the community. All social, educational and economic indicators were rated by points.

Thus, the Mandal Commission identified 3,743 groups as OBCs. The Commission also made a dozen recommendations, of which reservation of 27 percent of jobs/seats was only one. The others included land reform, special programmes for OBCs’ educational and economic upliftment, etc. Governments have ignored these.

The NSS estimates that OBCs are between 32 and 42 percent of the population and the NFHS says they form only 29.8 percent. The NSS isn’t equipped to survey castes—as distinct from income and consumption. That’s a function that only a group of demographers, sociologists and political scientists can perform on the basis of detailed district-wise data. (Castes vary from district to district).

The NSS and NFHS used the self-ascription method. This is crude and unreliable: people describe their caste according to how they think they’ll gain from it. Besides, the NSS lumped together upper-caste Hindus and Muslims in one category—which makes no sense.

At any rate, even the NSS-NFHS estimates are well above the 27 percent quota. OBCs are severely under-represented in government employment and in higher educational institutions. There is a strong case for affirmative action in their favour, and an even stronger one for Dalits, who face exclusion, social boycotts and serious victimisation on account of descent.

The second argument of the Pasayat-Panta judgment derives from a controversial verdict of the United States Supreme Court in the Grutter v. Bollinger case, on admission for a Black student to the University of Michigan Law School. The Court upheld the admission, but only because it was “narrowly tailored” not to discriminate against those who don’t belong to racial or ethnic minorities.

To be “narrowly tailored”, a race-conscious admissions programme cannot “insulate each category of applicants with certain desired qualifications from competition with all other applicants”. Instead, it should consider race/ethnicity as a ‘“plus’ in a particular applicant’s file.”

This rules out “quotas” or reservations for minority categories. Instead, their candidates should be accorded special points. In India, most universities don’t follow a point-based system of admissions.

The US judgment was pronounced by a court headed by Chief Justice William Rehnquist, an ultra-conservative appointed by former President Ronald Reagan. It is considered a setback to the cause of social justice. It’s tragic that the Indian Supreme Court, the guardian of a progressive Constitution, should follow a conservative precedent.

If India aspires to a degree of social cohesion and building a caring-and-sharing society, it must pursue affirmative action. This may not always take the form of reservations. These are blunt instruments. But that cannot be an argument for opposing affirmative action—as many upper-caste people do. There can be other supplementary approaches to quotas, including special points for a family history of illiteracy/poor schooling, origins in a backward region, etc. But such a system can evolve only if affirmative action is first accepted.

That’s where the rub lies. India’s upper castes have never fully reconciled themselves to affirmative action and to sharing power. The latest judgment has reinforced their resistance.