April 05, 2007	Thursday	Rabi-ul-Awwal 16, 1428

NEW DELHI: India’s Supreme Court has thrown a spanner in the government’s plan to promote affirmative action by reserving 27 per cent of admissions for them in central (federal) institutions of higher learning. Last week, a two-judge bunch ruled against such reservations mandated by an act of parliament in 2006.

The latest order also contradicts the rationale of a 1992 judgment of a much larger bench, composed of nine judges, which upheld such reservations for the low castes (called Other Backward Classes or OBCs in officialese) in central government jobs. The new verdict holds that quotas are anti-merit because under them, “unequals are treated as equals.”

India’s ancient caste system divides Hindu society into the Brahmin (priestly), Kshatriya (warrior) Vaishya (trader) and Shudras (serving) castes with the OBC group falling into the last category. Dalits (former untouchables) fall outside this four-fold caste system.

The apex court’s judgment has been expectedly, and raucously, welcomed by upper caste-dominated student bodies. But it has drawn strong protests from OBC students, tens of thousands of whom will be deprived of a chance to study in central colleges and universities, including prestigious institutions like the Indian Institutes of Technology and Indian Institutes of Management.

The verdict has been roundly criticised by a large number of political parties and by scholars of affirmative action. “It is a retrograde judgment, which strikes against the very principle of affirmative action in favour of the underprivileged”, Zoya Hasan, a professor of political science at Jawaharlal Nehru University (JNU), and a member of the National Commission on Minorities, told in an interview.

The judgment essentially bases itself on two arguments. First, the exact proportion of OBCs in India’s population has not been accurately identified, but based on projections made in 1978 by a specially appointed official commission (Mandal Commission). And second, setting quotas or reservations might not be an appropriate means of promoting diversity or affirmation action because it discriminates against “meritorious” candidates who do not suffer social disadvantage on account of caste, race or ethnicity.

“The first argument lacks merit”, says Prashant Bhushan, a Supreme Court lawyer who specialises in public interest litigation. “It is true that the population of OBCs in the population has been variously estimated by different surveys, at between 42 and 55 per cent. Some of these surveys are methodologically flawed.”

Adds Bhushan: “The Mandal commission’s estimates are probably the best available because they are based on a population census, as well as extensive consultations with demographers, historians and sociologists. At any rate, the high proportion of OBCs (in the population) is not in doubt. Nor is their under-representation in higher educational institutions, which is ten to 15 per cent.” The second argument is far more important than the dispute over numbers. It basically derives from a controversial 2003 verdict of the United States Supreme Court in the Grutter v. Bollinger case, pertaining to admission of a Black student to the University of Michigan Law School.

The US court held that the race-conscious admission was valid, but only because it was “narrowly tailored” not to discriminate against those who do not belong to racial or ethnic minorities. To be “narrowly tailored”, an admissions programme cannot “insulate each category of applicants with certain desired qualifications from competition with all other applicants”. Instead, it may consider race or ethnicity only as a ‘plus’ in a particular applicant’s file.”

In other words, held the US court, there should be no “quotas” or reservation targets for specific minority categories, which would amount to the “insulation” of such categories. Instead, candidates from them should be awarded special points in the evaluation of their application for admission.

“However, in India, most universities, barring exceptions like JNU, don’t follow a points-based system of affirmative action,” says Hasan. “Quotas have long been the standard instrument for it. The constitution itself has since 1950 reserved government jobs and school and college admissions for Dalits and Adivasis (tribal or indigenous people). The government merely extended this established principle to the OBCs.”

Adds Hasan: “Quotas are admittedly a blunt instrument, but that doesn’t make them iniquitous or invalid. It’s simply wrong to mechanically apply the US example to India, where social conditions are different and there is a centuries-long history of discrimination against, and social oppression of, the low castes.”

The extension of the US judgment to India has also caused consternation because the US supreme court that delivered the judgment was headed by Chief Justice William Rehnquist, an ultra-conservative judge, appointed by former President Ronald Reagan.

“It is indeed tragic that the Indian supreme court, which has long claimed to be the guardian of a progressive constitution, should follow a precedent set by one of the most conservative benches in US history,” says Prashant Bhushan.

Many Indian universities and elite institutes had earlier protested against quotas. As a result, the government decided to soften the impact of quotas by expanding the number of seats in these institutions by 54 per cent so as to retain the share of the “general category” students, dominated by the upper castes. Some of these institutions were planning to expand their educational infrastructure and volume of admission in a phased manner over three years.

Now, this has been put on hold at least until August, well after the admission process is completed in most central universities for the next academic year.

India’s United Progressive Alliance government now faces pressure from its coalition constituents to appeal against the judgment or take other remedial measures to reinstate the quota system. It is not clear if and how it will do so.

“At any rate, the latest verdict represents one more strike by India’s higher judiciary against measures to promote social justice,” argues Bhushan. In recent years, the supreme court has mandated changes in India’s laws on labour and industry to facilitate privatisation and “hire-and-fire” policies. It has also eroded the fundamental right to strike and the right to job security.

Says Bhushan: “This is a distressing instance of India’s higher judiciary appropriating unbridled powers for itself without democratic accountability. It is a self-appointing judiciary from the state-level high courts to the national supreme court. It is increasingly intruding into the domains of the legislation and the executive. This does not bode well for the future of Indian democracy.

Bhushan adds: “A judiciary acting arbitrarily to protect the rights of the privileged or perpetuate discrimination in education can be even more harmful than a legislature gone haywire, as happened during the 1975-77 state of emergency under (former prime minister) Indira Gandhi.”

As the Indian government and political parties debate strategy to nullify the new verdict, it is clear that a huge confrontation is brewing between the legislature and the higher judiciary. —Dawn/The IPS News Service