The Supreme Court of India has opened a can of worms by pronouncing a verdict against reservations for the Other Backward Classes (OBCs) in Central institutions of higher learning. The judgment has major long-term implications and will further widen the growing divide between the higher judiciary and the executive as well as the legislature. It has rankled political parties virtually across the board and will be bitterly contested.

The judgment, on interim applications pertaining to a batch of petitions challenging OBC reservations, comes just when the Central institutions were preparing to raise the number of admissions in a phased manner. By setting the final hearing for August, the interim order ensures that the admissions process for the next academic year will exclude OBCs. The government must do all it can to get the stay vacated. It has allocated as much as Rs 3,200 crores to various Central institutions so they can expand the number of seats.

The proposed seat increase, by a whopping 54 percent, was calculated precisely to minimise the disadvantage that “general category” (largely upper-caste) students would suffer on account of OBC reservations. This represented an attempt by the Centre to assuage the anti-reservation sentiment through the Veerappa Moily “oversight committee” established last year. Even that effort now stands negated.

The 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 to educational and social opportunities.

A major contradiction lies at the very heart of the judgment. A two-judge bench, comprised of Justices Arijit Pasayat and Lokeshwar Singh Panta, has ruled against the rationale of a verdict of a 9-judge bench in the 1992 Indra Sawhney case, which upheld OBC reservations in Central government jobs. Logically, what’s sauce for the goose (government jobs) should be sauce for the gander (university admissions) too. But the Supreme Court has declared that quotas for OBCs mean treating “unequals” as “equals”.

The judgment comes on top of differing legal opinions handed down by various Supreme Court benches, and efforts to play down the significance of 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 forms of social stratification such as caste” and hence that the Convention applies to India. If India is committed to social cohesion and eliminating casteist bigotry and prejudice, it should honour the Convention and systematically promote affirmative action.

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

The second argument is much more far-reaching. It holds that creating quotas for different social categories is itself invalid, and recommends that “a different form of preferential treatment other than quotas” could be used. 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 Constitution. But the Court balks at this and upholds SC-ST reservations.

How valid is the talk of indeterminacy of or uncertainty about the OBCs’ proportion in the population and their under-representation in educational institutions? Opponents of reservations claim that the 1931 census is outdated—which it is—and that the post-2000 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 to enumerate castes. Mr Bindeshwari Prasad Mandal constituted a 15-member experts’ (social scientists’) committee under the chairmanship of eminent sociologists M N Srinivas to devise ways of identifying OBCs. It organised broad-based consultations and 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 all the states and 30 Central ministries, and published notices in national dailies and regional papers inviting public responses. The National Informatics Centre analysed the information.

The experts’ committee spelt out 11 different criteria of backwardness, including caste, education and income, dependence on manual labour, early age of marriage, 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 a community. Social indicators were given three points each; educational indicators two points; and economic indicators one point each.

On this basis, the Mandal Commission identified 3,743 groups as OBCs. To argue that the 1931 census was the main basis for its report is a travesty of the truth. The Commission also made a dozen recommendations, of which reservations of 27 percent of jobs/seats was only one. The others included land reform, special programmes for educational and economic upliftment, etc. The government largely ignored these.

Now, what about the varying NSS estimates that OBCs are between 32 and 42 percent of the population? Or the NFHS view that they form only 29.8 percent? The NSS is simply not equipped to survey castes—as distinct from income and consumption. That’s a function that only a group of demographers, sociologists, political scientists and historians can perform on the basis of detailed district-wise data. (Castes vary from district to district).

Lacking expertise, the NSS used the self-ascription method. This is crude and unreliable: people will describe their caste according to how they think they’ll benefit from it. Besides, the NSS lumped together upper-caste Hindus and Muslims in one category—which makes no sense, as the Sachar Committee has shown. Neither its data, nor the NFHS estimate, can be considered valid.

At any rate, even these estimates are well above the 27 percent quota. It’s not denied that OBCs are severely under-represented in higher educational institutions. Given the reality of social discrimination, there is a strong case for affirmative action in the OBCs’ favour, and an even stronger one for Dalits and Adivasis, who face exclusion, social boycotts and disgraceful forms of victimisation on account of descent.

The second argument of the latest judgment derives primarily from a controversial verdict of the United States Supreme Court in the Grutter v. Bollinger case, pertaining to admission for a Black student to the University of Michigan Law School. The US 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.”

In other words, there should be no “quotas” or reservations for minority categories, which would amount to their “insulation”. Instead, their candidates should be accorded special points for admission. In India, most universities (baring Jawaharlal Nehru University) 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 judge appointed by former President Ronald Reagan. It was a setback to the cause of social justice. It’s tragic that the Indian Supreme Court, which claims to be the guardian of a progressive Constitution, should follow such a conservative precedent.

If India aspires to a degree of social cohesion and to build a caring-and-sharing society, it must take affirmative action. This may or may not take the form of reservations or quotas. These are, admittedly, blunt instruments. But that cannot be an argument for opposing affirmative action itself—as many upper-caste people do. It’s possible to look for other supplementary approaches, over and above quotas, including special points for a family history of illiteracy, poor schooling, origin in a backward region, etc. But we can evolve such a system only if we first accept affirmative action.

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