As the quota debate continues to rage in the media, evidence of gaps in understanding the issue has come to the fore even among well-known observers and recognized experts.
Today’s Times of India carries the article by Justice Rajindar Sachar, who has just submitted a report on the status of Muslims, as the chairman of the high-powered committee appointed by the Prime Minister. According to Justice Sachar, the Supreme Court’s Bench in the interim order has questioned the basis of the 27 per cent quota for OBCs, suggesting that the percentage actually could be less, as it was based on the flawed perception, that their population could be more than 27 per cent – whatever figure you take whether it is 52 per cent arrived by the Mandal Commission, or the 61st round of the National Sample Survey Organisation which put the figure around 41 per cent.
If you read the Interim order closely, the Bench is not hinting that the OBC population might be less than 27 per cent. It seems to share the petitioners’ view that Parliament intended fresh determination of OBCs for the sake of identifying the beneficiaries of the Act.
The relevant definition, at clause 2(g) of the 2006 Act, reads as follows:
Section 2 … (g) “Other Backward Classes” means the class or classes of citizens who are socially and educationally backward, and are so determined by the Central Government.
The petitioners argued that there has been no such determination, nor has any methodology of identification been laid down in the Act, and therefore reservation for OBC under clause (iii) of Section 3 cannot be implemented or even started.
The Government rejected the argument, saying the lists of OBCs identified on the basis of social and educational backwardness have already been determined and notified by the Central Government in the Ministry of Welfare (now named as Ministry of Social Justice & Empowerment), which is the nodal Ministry in charge of the subject. These lists are State-wise. Once issued, these State-wise Lists continue to be in force and are binding for any or all purposes, subject to modifications, deletions, additions from time to time in accordance with the National Commission of Backward Classes Act, 1993 and in the light of directions of this Hon’ble Court in Indra Sawhney. These State-wise Lists, already notified by the Central Government, are and have to be automatically and naturally followed by every Ministry and other Central Authorities for any or all purposes pertaining to SEdBC/OBC such as making provisions in the Five Year and Annual Plans for development, scholarships, developmental loans by the National Backward Classes Finance Development Corporation, etc. apart from appointment to civil posts and vacancies reserved for them under any Ministry or Authority or body of Central Government. The same State-wise Lists already notified by the Government, with updating from time to time on the basis of any inclusions or exclusions or modifications from time to time as per law are also naturally followed for the present purpose of reservation for SEdBC/OBC which has been provided in the impugned Act. The interim order is silent on why this explanation of the Government is not satisfactory.
Instead, the Bench appeared to be keen on a debate on the interpretation of Section 2(g) of the Act. Did Parliament intend this `determination’ to be freshly made, as claimed by the Petitioners? Although the Bench left the question unanswered, it did not leave any doubt regarding where its sympathies lie. But if you take the intention of Parliament as a guide to interpret this provision, it is clear that Parliament did not at all intend a fresh determination, as a fresh determination would have meant keeping the Act in abeyance for quite some time. Had it been the intention, Parliament would not have unanimously resolved to enact this legislation, giving it utmost priority, before the academic session starts.
Nor do the plain words of the statute –read as they are – leave any doubt that Parliament did not want to wait for a fresh determination of OBCs to take place. In other words, the petitioners not only raised the issue of the correct OBC population in the country, but also doubted the correctness of the existing OBC determination, apparently suggesting that the current list includes many classes, which ought not to be there.
I share the view that we need a periodical survey to answer complaints of wrong inclusion or exclusion of certain classes from the current OBC list. But that does not make the existing list completely untenable. Even in Indra Sawhney, Justice Jeevan Reddy makes the point that the failure to appoint a Commission prelude to identification of OBCs itself does not make the inclusion of a class in the list untenable (paragraph 119). The example he cited was Goa, where the State Government included certain castes in the OBC list without a Commission’s report to guide its decision.

He said:

“Even if in one or two cases (e.g., Goa), the list is prepared without appointing a Commission, it cannot be said to be bad on that account. The Government, which drew up the list, must be presumed to be aware of the conditions obtaining in their State/area. Unless so held by any competent court – or the permanent mechanism (in the nature of a Commission) directed to be created herewith holds otherwise – the lists must be deemed to be valid and enforceable.
The criteria evolved by Mandal Commission for defining/identifying the Other Backward Classes cannot be said to be irrelevant. May be there are certain errors in actual exercise of identification, in the nature of over-inclusion or under- inclusion, as the case may be. But in an exercise of such magnitude and complexity, such errors are not uncommon. These errors cannot be made a basis for rejecting either the relevance of the criteria evolved by the Commission or the entire exercise of identification, It is one thing to say that these errors must be rectified by the Government of India by evolving an appropriate mechanism and an altogether different thing to say that on that account, the entire exercise becomes futile. There can never be a perfect report. In human affairs, such as this, perfection is only an ideal – not an attainable goal. More than forty years have passed by. So far, no reservations could be made in favour of O.B.Cs. for one or the other reason in Central services though in many States, such reservations are in force.”

In fact, his view appeared to be similar to my earlier view expressed in this blog – only to be contradicted by Mr.Vivek Reddy on this blog in an earlier post– that if the Government, by instinct, and impulse consider certain castes as backward, the view should be largely respected. Although the way I put this made it appear as unreasonable, if you look at it again in the context of what Justice Jeevan Reddy wrote in the context of Goa, you could see some force in the argument. Again the Government’s perception of likely social unrest if certain castes are not in the OBC list need not be considered in a vacuum, but has to be understood in the larger context. Earlier I had cited the 1921 experience of Mysore State granting reservations for backward classes; I understand that even this decision was preceded by Justice Miller Commission, which received representations from backward classes, to determine their eligibility for inclusion, although it might not have carried out a survey as such. Having said this, I am not at all against the usefulness of data or surveys to throw more light on the status of backward classes. But their absence – for whatever reasons – must not be used as an excuse to delay social justice.
The second point which Justice Sachar made is about creamy layer. According to him, since it is accepted as part of the Constitutional scheme, let the Government exclude the creamy layer beneficiaries from the purview of the Act, and await the Court’s full hearing on this matter.
It is not as if the Bench is not aware of the Government’s arguments against excluding creamy layer under the Act. The Bench is apparently not convinced, even though it has not given any convincing reasons for rejecting the Government’s stand. Whatever the justification, I see force in Yogendra Yadav’s suggestion – in the Times of India – that the creamy layer might be included within the 27 per cent quota, but they should be given the benefit, only if there were not sufficient non-creamy layer OBCs to fill the quota.
Asking the Government to exclude the creamy layer among the OBCs from the Act’s beneficiaries just in order to secure the Court’s interim clearance – as Justice Sachar has argued – is not a sound proposition. The purpose of reservations in the Indian context is not affirmative action, but distributive justice, and ensuring a fair degree of diversity and pluralism, apart from adequate representation – whether it is public service or educational institutions. If you keep on removing the creamy layers every year, then a stage will come, when there would be no SEBCs at all, and the very logic of extending reservations to SEBCs would be defeated, and the OBCs would be back to square one, competing with unequals in the rest of the society. I feel the creamy layer debate so far is very superficial – in terms of how judiciary understood it – and there is need for greater clarity and understanding of its various nuances.