'Compounding Confusion'

By denying reservation to the creamy layer among Other Backward Classes (OBC)the Constitution Bench of the Supreme Court has compounded confusion aboutwhether reservation for OBCs in educational institutes is indeed constitutional.

Clause 2 of Article 16 of the Constitution states: "No citizen shall, ongrounds only of religion, race, caste, sex, descent, place of birth, residenceor any of them, be ineligible for, or discriminated against in respect of, anyemployment or office under the State."

Thereby any poor student belonging to a forward caste could justifiably claimthat he or she was being discriminated against by exclusion from reservationoffered to OBC counterparts.

This perhaps was nullified, and the Supreme Court perhaps was persuaded, byClause 4 of Article 16 of the Constitution which states: "Nothing in thisarticle shall prevent the State from making any provision for the reservation ofappointments or posts in favour of any backward class of citizens, which, in theopinion of the State, is not adequately represented in the services under theState."

The same principle may be extended to reservation in educationalinstitutions.

The question is whether caste denotes class. If it does, then all members ofthe creamy layer are also backward. In fact the Mandal Report itself implicitlyrubbished the notion of caste denoting class by categorizing the same castesbackward in one state but forward in another. If the same caste can becategorized differently in different regions, does it not cease to be acriterion for determining class?

The Supreme Court has excluded the creamy layer of OBCs from inclusion in thereservation quota. What about, say, a Yadav from Haryana? Should he be eligiblefor reservation like a Yadav from Bihar when his caste is not consideredbackward in his state?

Clause 4 of Article 16 of the Constitution can override Clause 2 only if weaccept caste as the clinching criterion for class. If that is done the OBCcreamy layer continues to be backward regardless of economic or social status.If we do not accept caste as a criterion for class the definition of OtherBackward Classes must rely overwhelmingly on economic factors.

The Supreme Court judgment may not have ended the raging debate on quotareservation. It may have further fuelled it.