Early takes on the Ashoka Kumar Thakur case

As is perhaps to be expected when the Supreme Court issues four judgments in a single case, much of the early analysis of the Thakur case is very general and noncommittal. This may be because a close reading of the judgments and a good understanding of their contents is necessary, and most columnists haven’t yet had the time for that. We will all be watching out for that over the next few days. While all the leading dailies had news-items about the judgments, and some also carried editorials, I thought that the Express was more categorical than others. The Express editorial on the Thakur case uses the same adjective for the case that is already becoming universal, calling it a “landmark case.” But, after briefly discussing the case, the Editorial moves onto the larger issue of higher education reform: India is already running thin on meeting the aspirations of its young citizens for quality education. Take, for instance, the All India Institute of Medical Sciences. Each year, it takes just over 40 students for its MBBS programme. Whether half those seats are reserved or a quarter would not alter the fact that four dozen places annually for India’s best medical education is pathetically limited. So it is in different proportions at the IITs, the IIMs, our law schools and our universities. These are shortages born of apathy, and they make salient the popular perception of a clash between equity and excellence, between meaningful equality of opportunity and merit. Those are false choices. Excellence is unattainable in a society with inequities. A programme of affirmative action would therefore be incomplete without expansion and improvement of our higher education system While this is not a new point (several others have dwelt on this issue, and Justice Dalveer Bhandari’s judgment in Thakur also touches upon the overall issue of the educational system in India), it is perhaps worth remembering as we head into a debate on the merits of the ruling in the Thakur case. A recent policy paper which drives home this point in frightening detail is available here. Authored by Devesh Kapur and Pratap Mehta, the paper starts with a quote from Prime Minister Manmohan Singh describing the malaise that affects the higher education system, and proceeds to provide details and explain some of the reasons for the status quo. I would strongly recommend this paper to anyone who is interested in knowing some vital details about our current system of higher education in India. Returning to the Thakur judgment itself, Pratap Mehta may well be among the first to provide a detailed analysis of the judgments, which appeared in his column in today’s Express. The piece will, by setting out what he understands to be the competing considerations weighed by the majority and dissenting judgements, probably help frame further debate and discussion about the judgment, and I suspect we will hear more about his analysis in days to come. Readers of the blog who are interested in this issue will do well to closely read the views of someone who has been an astute analyst of the issues that were central to the Thakur case.
My own immediate reaction to Mehta’s piece was that he may be attributing too much to the judges on either side of the divide he describes. It is not clear to me that the divisions between the majority and dissenters are so clearly marked, either in terms of their findings or their clearly delineated philosophical differences on ways to approach the issue of caste divisions in India. There isn’t a real, genuine dissent in this case, which is to me, the only real surprise in the case. Justice Pasayat’s seeming retreat from the language he employed in the order staying the OBC quota policy is striking (as was the measured tone adopted by Pratap Mehta in analysing the judgment as well, given his own role in the uproar over the granting of the stay on the OBC quotas issue last year). As Mr. Venkatesan suggests in a previous post, the judgments will have to be read closely to find out what the actual holding of the case is, to which a majority of judges agreed as a group. My sense is that there are partial dissents, sometimes on different issues, and understanding the full import of the case may require more deliberation and discussion.

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  • There is one issue that has not been resolved, as Justice Raveendran notes. How is this 27% reservation counted? Is it at least 27% or at most 27%? In the first, you fill the general quota first which might include any OBC good enough to qualify in the general quota. You then fill the OBC quota with OBC candidates. In the second, you fill the OBC quota with OBC candidates first and then remove them from the list. The general quota is then filled with the remaining candidates.

    This is not exactly trivial. In some instances, even under the current system, OBCs qualify for something like 23% of all seats. If you use the first method, it will amount to a de facto reservation of something like 50% for OBCs But I suspect that is exactly what is in store. I think TN even with 69% reservations follows the first method.

    I wonder why this has remained unresolved until now.