An interactive session on the Constitutional Issues and and perspectives of Reservations for OBCs in Higher Education was organized on 20th April, 2007 at Bangalore International Centre. The lead speaker was Mr. Aditya Sondhi, a brilliant young advocate who practices in Karnataka High Court and Supreme Court.
The Director of BIC introduced Mr. Sondhi to the select audience which had gathered to listen to him.
In an incisive and thought-provoking speech, Mr. Sondhi drew attention to the fact that the Reservation for OBCs has assumed emotional overtones, leading to both protagonists and antagonists taking extreme stances. As a result there are often misunderstandings about the real issues involved. For instance, neither the Supreme Court, nor the Constitutional provisions indicate that Reservations per se are either undesirable or unwarranted. Admittedly Article 16 of the Constitution talks of reservation for SC/ST in employment/promotion, but does not talk of OBCs. However, 93rd Amendment to the Constitution provides for the power to reserve seats for “socially and educationally backward classes”. The Central Educational Institutions (Reservation in Admission) Act, 2006, which now provides for 27% reservation in favour of OBCs, in addition to 15% for SCs and 7.5% for STs, is in furtherance to the objectives of the 93rd Amendment. Apart from that, reservation as a tool for upliftment of those who are deprived and depressed is well within the mandate and objective of our socialist and welfare state, as stipulated in our Constitution. It is therefore wrong to assume that the Supreme Court, in granting a stay to the immediate operationalisation of the Central Educational Institutions (Reservation in Admission) Act, 2006 has raised any, constitutional issue. What the Supreme Court has really asked the Government to clarify is the basis for identification of OBCs and the manner of ensuring that the benefits of reservation flow only to those who really belong to the deprived and depressed class. The concept of “Creamy Layer”, which was evolved by the Supreme Court while delivering its judgement in Indira Sawhney’s case (The Mandal Judgement, as it is popularly known), assumes relevance in this context.
There is no scope for any debate on the stance taken by the protagonists of reservations that it is a constitutional mandate to constantly strive for the elimination of inequalities and to provide for equal opportunities and accessibility to all the sections of the population. It is also by and large true that reservations for OBCs in seats of higher education are unlikely to lead to any substantial impact on either standard or merit as the cut-off for the OBCs is still substantially high. However, the issue of laying down the guidelines or criteria as to who in fact are the OBCs, can not be brushed aside. The date of 1931 census which has been taken as the basis by the Government may neither be relevant, nor accurate. There is vast difference between India of 1931 and India of 2007. For one thing, two independent and sovereign nations – Pakistan and Bangladesh – have emerged since those days along with substantial shifts and changes in both the class and composition of the population, as it is available from the 1931 census data. There has also been considerable changes in the social and economic status of several classes in the population since 1931, even within areas undisturbed by the formation of Pakistan and Bangladesh. It would therefore appear to be prudent to do a caste-based census of the present population, as has been suggested by Mr. V P Singh, former Prime Minister, so that only those who are really deprived and depressed can get the benefits of reservation. Shri Sondhi had no doubts in his mind that a caste-based census, if undertaken, would show that the socially and educationally backward classes require reservations at a level much higher than 27%. However, in view of the Supreme Court directive that reservations of all categories taken together can not exceed 50%, possibly the level for OBCs would have to be kept pegged at 27% or close to that. The relevant question is not whether there should be reservation for OBCs, but how exactly the beneficiaries would be categorized and identified so that only those who are socially and educationally marginalized get the advantage. In other words, protection should not be wasted on those who do not require such protection. Another extremely relevant point stressed by Mr. Sondhi was that reservations, by themselves, can not be considered as an end. It would be necessary to look at the whole issue from the supply side so that quality education is made available and accessible to all, irrespective of class, caste, religion or economic conditions right from the primary level and make the whole question of reservations redundant. Since such an approach can not be taken up in a lackadaisical and laid back manner, the Government would have to take up a massive national programme, to be completed within a specified time-frame and have reservations confined to that time-frame instead of for an indefinite period.
In the lively interchanges that followed, there was a general endorsement to the approach of Mr. Sondhi and an appreciation that the issue needed to be handled with sensitivity and understanding. It was indeed an evening when several cobwebs and misunderstanding were cleared.