Special Report

OBC Reservations: Arjun Singh's failed last hurrah

In an unanimous judgement delivered last month, the Supreme Court upheld Union HRD minister Arjun Singh’s master strategy of breaking the OBC vote bank estimated at 200 million. But the political windfall of the institutionally damaging additional 27 percent higher education quota for OBCs is likely to be far less than expected. Dilip Thakore reports

Age has not withered nor repeated failure staled octogenarian Union human resource development (HRD) minister Arjun Singh’s ambition to rise to the most pre-eminent position in the nation’s political pantheon: the prime minister’s office. From his citadel in Shastri Bhavan, South Block, which houses the Union HRD ministry in New Delhi, ever since May 2004 when he was sworn in as a minister of the 17-party, Congress-led UPA (United Progressive Alliance) government, Singh has been weaving a fine web of strategies and conspiracies to undermine prime minister Manmohan Singh — a political novice surprisingly appointed prime minister by Congress party chief Sonia Gandhi following the Congress having unexpectedly emerged as the largest single party in the Lok Sabha four years ago.

On April 10, one of Arjun Singh’s master strategies — to win the support of OBCs (other backward classes/castes), a massive segment of the country’s population whose vote bank is estimated at 200 million citizens — paid off spectacularly. Delivering its long-awaited verdict in Ashoka Kumar Thakur vs. Union of India & Ors (Writ Petition (civil) 265 of 2006), a five-judge bench of the Supreme Court headed by Chief Justice K.G. Balakrishnan and comprising Justices R. Raveendran, Dr. Arijit Pasayat, C.K. Thakker and Dalveer Bhandari, approved the 93rd Amendment to the Constitution of India and the consequential Central Educational Institutions (Reservation in Admission) Act, 2006. This enabling legislation (engineered by Arjun Singh) reserves an additional (i.e in addition to the 22.5 percent reserved for scheduled castes and scheduled tribes) 27 percent of seats in all of the country’s 85 Central government promoted institutions of higher education for OBC students.

Even as they expressed disapproval of legislation which militates against the egalitarian and non-discriminatory ideals of the Constitution, their lordships of the apex court upheld the controversial legislation as reasonable given that after implementation of the CEI Reservation Act, aggregate reservation for scheduled castes, scheduled tribes and OBCs in Central government institutions will not exceed the threshold of 50 percent set by the Supreme Court in several previous judgements.

Speaking on behalf of the court, in a brilliantly drafted 72-page judgement, Chief Justice Balakrishnan approved reservation for historically deprived classes/castes in educational institutions in principle. "Reservation is one of many tools that are used to preserve and promote the essence of equality, so that disadvantaged groups can be brought to the forefront of civil life. It is also the duty of the state to promote positive measures to remove barriers of inequality and enable diverse communities to enjoy freedoms and share the benefits guaranteed by the Constitution. In the context of education, any measure that promotes the sharing of knowledge, information of ideas and encourages and improves learning among India’s diverse classes deserves encouragement. To cope with the modern world and its complexities and turbulent problems, education is a must and cannot remain cloistered for the benefit of a privileged few. Reservations provide that extra advantage to persons who without such support can forever only dream of university education without ever being able to realise it."

To adequately comprehend the ratio decidendi (rationale) of the Supreme Court’s judgement in the Ashoka Kumar Thakur and 13 other writ petitions clubbed with it, it is important to recall the sequence of events leading up to the historic April 10 judgement of the apex court. To prepare the ground for education reservation for the huge community of OBCs whose number is variously estimated at 330-500 million, in 2005 the 93rd Amendment, adding a new clause (5) to Article 15 of the Constitution (which prohibits discrimi-nation on grounds of religion, race, caste, sex or place of birth) was drafted at the behest of Arjun Singh. "Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any provision by law, for advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions, including private institutions whether aided or unaided by the State, other than minority education institutions referred to in clause (1) of Article 30," said the new clause appended to Article 15 by the Constitution (Ninety-Third Amendment ) Act, 2005. On December 21, 2005 Parliament unanimously approved the Act by a voice vote.

Having prepared the ground for introducing a reserved quota for OBCs in all institutions of higher education, public and private, the next step of Arjun Singh and his coterie within the Congress was to draft the Central Educational Institutions (Reservation in Admission) Act, 2006. After reaffirming the reservation of 15 percent of seats in Central educational institutions for admission of scheduled caste and 7.5 percent for scheduled tribe students, s.3 (iii) of the CEI Reservation Act provides that "out of the annual permitted strength in each branch of study or faculty, twenty-seven percent seats shall be reserved for the Other Backward Classes". This politically populist legislation was also unanim-ously approved by Parliament on December 18, 2006 — almost exactly a year after the passage of the 93rd Amendment Act.

These more than a dozen writ petitions were clubbed together for adjudication by the specially constituted five-judge bench of the apex court and argued by the country’s top legal counsel Ram Jethmalani, Harish Salve, Fali Nariman, K.K. Venugopal, P.P. Rao, Rajeev Dhawan, Indra Jaisingh and Sushil Jain (whose fees range from Rs.1-5 lakh per day) among others appearing for the petitioners, while K. Parasaran, solicitor general G.E. Vahanvati and additional solicitor general Gopal Subramanium represented the Union government.

In the end, following several months of hearing the arguments and counter-arguments of high-priced counsel, Chief Justice Balakrishnan framed 13 issues which were pertinent to the case — whether the 93rd Amendment alters the basic structure of the Constitution; whether Articles 15(4) and 15(5) are mutually contradictory; whether exclusion of minority education institutions from the purview of Article 15(5) is justifiable; whether the enactment of the 93rd Amendment had followed the constitutionally prescribed procedure; whether the identification of backward classes on the basis of caste is constitutionally valid; whether the "creamy layer" within OBCs/ SEBCs (socially and economically backward classes) should be excluded from the ambit of the CEI Reservation Act etc, — and passed his verdict on each issue framed (see box p.68). All the other judges of the specially constituted constitutional bench of the apex court — with minor quibbling — concurred.

Predictably, Arjun Singh who within the Congress party leads a left wing rump committed to olde world Nehruvian socialism that even the Nehru-Gandhi family has abandoned, greeted the Supreme Court verdict validating the 93rd Amendment and CEI Reservation Act engineered and piloted through Parliament by him, as a great victory. "This is a very historic judgement. Hundreds of students belonging (sic) to the OBC category will be benefitted by it. I am sure all people who want equity in access to higher education will support the judgement," Singh told reporters in Delhi shortly after television news channels interrupted their programmes to flash the Supreme Court verdict and before the next day’s newspapers reported the apex court’s judgement in 40 point all caps headlines.

Although the first reaction of Congress party members and leaders of political parties of the UPA government at the Centre was to flood the Union HRD minister with congratulatory telephone calls for winning a famous victory, careful study of the court’s judgement indicates that neither Arjun Singh, nor the Congress party is likely to reap the electoral bonanza which the 93rd Amendment and the CEI Reservation Act were expected to confer. The fine print of the apex court’s judgement in the Ashoka Kumar Thakur Case has prudently narrowed the discretionary admission power of government and Central government education institutions in the interests of maintaining academic standards and socio-economic equity.

Thus "to balance OBC reservations with other societal interests" and "to maintain standards of excellence" the court has ruled that those admitted under the CEI Reservation Act should also have performed well in institutional entrance exams. As Justice Dalveer Bhandari put it, "cut off marks for OBCs should not be set more than 10 marks out of 100 below that of the general category", i.e 10 percent.

Moreover Justices Payasat and Thakker in their joint judgement suggested that if a sufficient number equivalent to 27 percent of OBC candidates don’t qualify even after being given reasonably lower cut-offs, the lapsed capacity "shall be filled up by candidates from the general categories". These caveats entered by the learned justices in their historic judgement in the Ashoka Kumar Thakur & Ors Case rule out the narration of horror stories by anti-reservationists recounting admission of OBCs scoring half to one-third of cut-off marks and securing entry into institutions of excellence under reserved quotas.

Secondly, while rejecting some petitioners’ arguments that completion of higher secondary school automatically graduates citizens out of the category of socially and economically backward classes, the court observed that reservation should not be made solely by caste considerations. The judges also declined to permit the government to confer the concession of reservation to OBCs in perpetuity. They suggested that the 27 percent quota for OBC admissions should be under "periodic review as to the desirability of continuing operation of the statute" (the CEI Reservation Act). "This shall be done once in every five years," held J.J Thakker and Payasat.

Thirdly, the political windfall of the apex court upholding the constitutional validity of the CEI Reservation Act is likely to be far less than expected for the simple reason that the quota legislated for OBCs is restricted to 85 Central government promoted universities and aided institutions of higher learning. State government and privately-promoted institutions of higher education do not fall within its purview. Although state governments routinely legislate substantial quotas for SC, STs and OBCs in institutions of higher learning — in Tamil Nadu 69 percent of seats in government owned colleges and universities are reserved on caste/ backward classes criteria — and have hitherto browbeaten private unaided institutions and institutions of professional education in particular to concede 50-85 percent of capacity to them for allocation, reservation of another 27 percent of seats for OBCs in privately promoted engineering and medical colleges and private deemed universities is an unlikely prospect.

Even though the majority of judges of the bench declined to comment on the issue of whether the additional 27 percent reservation in favour of OBC students is applicable to private unaided institutions on the ground that none of them were petitioners in the batch of petitions heard by the court, in his judgement Justice Dalveer Bhandari citing the historic full bench judgements of the apex court in the T.M.A Pai vs State of Karnataka (2002) and P.A. Inamdar vs. State of Maharashtra (2005) took exception to the inclusion of unaided institutions within the purview of the new Article 15(5) inserted into the Constitution by the 93rd Amendment.

"The right to select students on the basis of merit is an essential feature of the right to establish and run an unaided institution. Reservation is an unreasonable restriction that infringes this right by destroying the autonomy and essence of an unaided institution. The effect of the 93rd Amendment is such that Article 19 is abrogated, leaving the basic structure (of the Constitution — Editor) altered. To restore the basic structure, I sever the 93rd Amendment’s reference to unaided institutions," ruled Justice Bhandari. In the circumstances, now reservations in toto in private unaided institutions of higher education are in jeopardy following the social engineering efforts of Arjun Singh and his coterie.

Yet while learned judges of the Supreme Court have somewhat reluctantly confirmed the validity of the 93rd Amendment and the CEI Reservation Act with several caveats and clarifications, the heaviest blow it has struck against the political calculus of the Union HRD minister (who as several judges sarcastically implied should be paying greater attention to developing elementary and secondary education) is that it has excluded the progeny of the so-called "creamy layer" or affluent OBCs, from availing benefit of the additional 27 percent reservation.

On this issue of the exclusion of the creamy layer of OBCs from the purview of the 93rd Amendment, all the five judges hearing the case were in complete agreement. Indeed Chief Justice Balakrishnan felt it incumbent upon himself to detail the list of classes of persons constituting the creamy layer drawn up by the Union ministry of personnel, public grievances and pensions in its office memorandum dated September 8, 1993 following the apex court’s judgement in Indra Sawhney’s Case (1992), which validated 27 percent reservation for OBCs in Central government jobs.

The list of creamy layer OBCs includes top people in constitutional posts (including Supreme Court and high court judges); top civil servants at the Centre and in the states; officers in the armed forces above the rank of colonel and equivalent; professionals and those in trade and industry with high incomes; property owners and income-rich/wealthy people (with gross annual income of Rs.2.5 lakh for three consecutive years). "We make it clear that backward class as defined in s. 2 (g) of Act 5 of 2007 (i.e. CEI Reservation Act) must be deemed to have been such backward class by applying the principle of exclusion of the ‘creamy layer’," said the chief justice in his order.

Although he has put brave face on it, there’s no doubt that the exclusion of the creamy layer or socio-economically advanced among OBCs from the ambit of reservations in Central government higher education institutions, particularly from the IIMs, IITs and NITs in particular, is a severe blow to the wily HRD minister’s political strategy. It’s hardly a national secret that the keys of the OBC vote banks are tightly held by the new genre of aggressive and affluent OBC leaders who by expertly recalling the historical excesses of upper castes of the Hindu varna system and consolidating OBCs, have begun winning elections in the country’s most populous states, notably Uttar Pradesh (pop.180 million) and Bihar (85 million).

Yet it’s plain as a pikestaff that while in power in the state capitals, they have been busy enriching themselves and advancing their kith and kin without doing much for the material upliftment of those at the bottom of the socio-economic pyramid in OBC ruled states. It’s an open secret that the legislation of reservations for OBCs in the country’s top education institutions was designed to co-opt the OBC creamy layer who have sufficiently good primary and secondary education to aspire for high quality higher education. Singh’s calculation was that in return creamy layer OBCs would swing their vote banks behind the Congress party and win him brownie points with 10, Janpath, i.e Sonia Gandhi. "The hidden purpose of the OBC quota was to push the wards of OBC netas, babus and elite into our top institutions via an unfair handicap. But this strategy has backfired because the court has excluded the ‘creamy layer’," writes Delhi-based columnist Gurcharan Das in the Sunday Times of India (April 20), raising the possibility that the CEI Reservation Act might actually explode in the Congress party’s face as angry OBC leaders turn on it.

But at bottom, even if in their separate judgements in the OBC reservations case the five justices of the apex court have done a commendable balancing job in averting a Parliament-judiciary showdown while expanding the ambit of affirmative action to include genuinely deserving SEBCs (socio-economically backward classes), they have undoubtedly slowed, if not stymied, the halting process of raising academic standards in India’s languis-hing higher education institutions.

Within the groves of Indian academia there is much private head-shaking about growing politically-inspired interference and tinkering with the already considerably eroded autono-my of institutions of higher learning. In the aftermath of the apex court’s judgement, the administrative workload of institutional managers who will have to ascertain the veracity of OBC quota applicants and thereafter ensure they are not of the creamy layer within this reserved category, will increase. Simultaneously with the UPA government having decreed that institutional capacity will have to be increased by 54 percent so that seats available within the general merit category don’t diminish, institutional managements have to quickly recruit additional faculty and plan infrastructure expansion to accomm-odate the 27 percent additional intake.

Adds Deepak Nayyar, a member of the National Knowledge Commission and former vice-chancellor of Delhi University (2000-05): "Most Central universities, and certainly Delhi University will find it difficult to expand capacity within the course of just one year. We have neither the physical hardware in terms of buildings, classrooms, etc, nor faculty and other staff to expand so rapidly."

A second more pernicious problem which institutional managers will have to learn to cope with is the virus of casteism which has been let loose in campus India by reckless politicians with greedy eyes on vote banks. Instead of the country moving towards the ideal of an egalitarian casteless society as envisaged by the founding fathers of the Constitution, the incubus of caste consciousness has been injected into Indian academia. Casteist slurs, insults and clashes which are common on college campuses in Uttar Pradesh and Bihar are incrementally likely to vitiate the environments of India’s finest institutions of higher education.

Moreover with socially advanced creamy layer students among the OBCs pointedly excluded from availing the benefit of reservation, the admission of large cohorts of OBC, SC and ST students with weak primary and secondary education into the country’s best higher education institutions — no matter what politicians say — will inevitably dilute academic standards. And in this context it is pertinent to bear in mind that none of India’s domestically much-hyped excellent colleges/universities are included in the surveys of the world’s top universities conducted by the London-based Times Higher Education Supplement and the Shanghai Jia Tong University, China.

Quite evidently the root problem of India’s higher education system which has resulted in the clamour for reserved admission quotas for scheduled castes, scheduled tribes, OBCs and minorities, is insufficient capacity creation. Currently with a mere 0.37 percent of GDP invested in higher education annually, only 11 percent of India’s youth in the age bracket 18-24 can be accommodated in the country’s 352 universities and 18,000 colleges, as against 40-50 percent of this age cohort in western countries and 21 percent in China. Therefore as has been continu-ously advocated in EducationWorld, the annual allocation (Centre plus states) for education needs to be raised from the current 3.9 percent of GDP to 6 percent as recommended by the Kothari Commission way back in 1966, with investment in higher education rising to 1.5 percent of GDP per year.

Moreover additional capacity creation in higher education also necessitates a larger role for the private sector and easy entry of foreign education institutions, many of whom are ready, willing and able to establish branch campuses in India. Yet both these quick capacity enhancement options have been fiercely resisted by Arjun Singh who has prompted the University Grants Commission and the All India Council for Technical Education (both in effect divisions of the Union HRD ministry) to write up stringent regulations to discourage private expansion and foreign entry into tertiary education.

Comments Francis Fanthome, MP, former secretary of the Council for the Indian School Certificate Examinations and a member of Parliament’s committee on Science and Technology, Environment and Forests: "The capacity constraint situation in higher education is likely to worsen after the full rollout of the Sarva Shiksha Abhiyan programme which will result in 50 percent of students completing higher secondary education within a few years against a mere 15 percent currently. There’s a clear need therefore to allow the entry and expansion of public, private and foreign institutions in higher education — to let a thousand flowers bloom."

As has come to pass in Indian industry which is experiencing unprecedented growth as a consequence, liberalisation and deregulation of Indian higher education, cabined, cribbed and confined by a crippling licence-permit-quota regime, is inevitable, notwithstanding the rearguard action being fought by HRD minister Arjun Singh and his band of recklessly regressive socialists. But in the meanwhile in the much-too-few islands of institutional excellence in Indian academia, things will get worse before they become better.

OBC Reservations: Arjun Singh's failed last hurrah

OBC Reservations: Arjun Singh's failed last hurrah

In an unanimous judgement delivered last month, the Supreme Court upheld Union HRD minister Arjun Singh’s master strategy of breaking the OBC vote bank estimated at 200 million. But the political windfall of the institutionally damaging additional 27 percent higher education quota for OBCs is likely to be far less than expected. Dilip Thakore reports

Age has not withered nor repeated failure staled octogenarian Union human resource development (HRD) minister Arjun Singh’s ambition to rise to the most pre-eminent position in the nation’s political pantheon: the prime minister’s office. From his citadel in Shastri Bhavan, South Block, which houses the Union HRD ministry in New Delhi, ever since May 2004 when he was sworn in as a minister of the 17-party, Congress-led UPA (United Progressive Alliance) government, Singh has been weaving a fine web of strategies and conspiracies to undermine prime minister Manmohan Singh — a political novice surprisingly appointed prime minister by Congress party chief Sonia Gandhi following the Congress having unexpectedly emerged as the largest single party in the Lok Sabha four years ago.

On April 10, one of Arjun Singh’s master strategies — to win the support of OBCs (other backward classes/castes), a massive segment of the country’s population whose vote bank is estimated at 200 million citizens — paid off spectacularly. Delivering its long-awaited verdict in Ashoka Kumar Thakur vs. Union of India & Ors (Writ Petition (civil) 265 of 2006), a five-judge bench of the Supreme Court headed by Chief Justice K.G. Balakrishnan and comprising Justices R. Raveendran, Dr. Arijit Pasayat, C.K. Thakker and Dalveer Bhandari, approved the 93rd Amendment to the Constitution of India and the consequential Central Educational Institutions (Reservation in Admission) Act, 2006. This enabling legislation (engineered by Arjun Singh) reserves an additional (i.e in addition to the 22.5 percent reserved for scheduled castes and scheduled tribes) 27 percent of seats in all of the country’s 85 Central government promoted institutions of higher education for OBC students.

Even as they expressed disapproval of legislation which militates against the egalitarian and non-discriminatory ideals of the Constitution, their lordships of the apex court upheld the controversial legislation as reasonable given that after implementation of the CEI Reservation Act, aggregate reservation for scheduled castes, scheduled tribes and OBCs in Central government institutions will not exceed the threshold of 50 percent set by the Supreme Court in several previous judgements.

Speaking on behalf of the court, in a brilliantly drafted 72-page judgement, Chief Justice Balakrishnan approved reservation for historically deprived classes/castes in educational institutions in principle. "Reservation is one of many tools that are used to preserve and promote the essence of equality, so that disadvantaged groups can be brought to the forefront of civil life. It is also the duty of the state to promote positive measures to remove barriers of inequality and enable diverse communities to enjoy freedoms and share the benefits guaranteed by the Constitution. In the context of education, any measure that promotes the sharing of knowledge, information of ideas and encourages and improves learning among India’s diverse classes deserves encouragement. To cope with the modern world and its complexities and turbulent problems, education is a must and cannot remain cloistered for the benefit of a privileged few. Reservations provide that extra advantage to persons who without such support can forever only dream of university education without ever being able to realise it."

To adequately comprehend the ratio decidendi (rationale) of the Supreme Court’s judgement in the Ashoka Kumar Thakur and 13 other writ petitions clubbed with it, it is important to recall the sequence of events leading up to the historic April 10 judgement of the apex court. To prepare the ground for education reservation for the huge community of OBCs whose number is variously estimated at 330-500 million, in 2005 the 93rd Amendment, adding a new clause (5) to Article 15 of the Constitution (which prohibits discrimi-nation on grounds of religion, race, caste, sex or place of birth) was drafted at the behest of Arjun Singh. "Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any provision by law, for advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions, including private institutions whether aided or unaided by the State, other than minority education institutions referred to in clause (1) of Article 30," said the new clause appended to Article 15 by the Constitution (Ninety-Third Amendment ) Act, 2005. On December 21, 2005 Parliament unanimously approved the Act by a voice vote.

Having prepared the ground for introducing a reserved quota for OBCs in all institutions of higher education, public and private, the next step of Arjun Singh and his coterie within the Congress was to draft the Central Educational Institutions (Reservation in Admission) Act, 2006. After reaffirming the reservation of 15 percent of seats in Central educational institutions for admission of scheduled caste and 7.5 percent for scheduled tribe students, s.3 (iii) of the CEI Reservation Act provides that "out of the annual permitted strength in each branch of study or faculty, twenty-seven percent seats shall be reserved for the Other Backward Classes". This politically populist legislation was also unanim-ously approved by Parliament on December 18, 2006 — almost exactly a year after the passage of the 93rd Amendment Act.

Inevitably given that a massive chunk of seats in Central government funded institutions including all the colleges of Delhi University, JNU, IITs and IIMs etc, which stand head and shoulders above state government and most private tertiary level higher learning institutions in terms of infrastructure, faculty and academic inputs, were taken away from the general merit pool (hitherto 77.5 percent of the annual intake) in a higher education environment in which demand far exceeds available capacity, a spate of writ petitions were filed in the Supreme Court challenging the constitutional validity of the 93rd Amendment and the CEI Reservation Act. The petitions protested these enactments as altering the "basic structure of the Constitution" and violating Article 14 (which enjoins the State to guarantee all citizens equality before the law) and Article 15 which prohibits State discrimination on the grounds of race, caste, sex, religion etc, in particular.

These more than a dozen writ petitions were clubbed together for adjudication by the specially constituted five-judge bench of the apex court and argued by the country’s top legal counsel Ram Jethmalani, Harish Salve, Fali Nariman, K.K. Venugopal, P.P. Rao, Rajeev Dhawan, Indra Jaisingh and Sushil Jain (whose fees range from Rs.1-5 lakh per day) among others appearing for the petitioners, while K. Parasaran, solicitor general G.E. Vahanvati and additional solicitor general Gopal Subramanium represented the Union government.

In the end, following several months of hearing the arguments and counter-arguments of high-priced counsel, Chief Justice Balakrishnan framed 13 issues which were pertinent to the case — whether the 93rd Amendment alters the basic structure of the Constitution; whether Articles 15(4) and 15(5) are mutually contradictory; whether exclusion of minority education institutions from the purview of Article 15(5) is justifiable; whether the enactment of the 93rd Amendment had followed the constitutionally prescribed procedure; whether the identification of backward classes on the basis of caste is constitutionally valid; whether the "creamy layer" within OBCs/ SEBCs (socially and economically backward classes) should be excluded from the ambit of the CEI Reservation Act etc, — and passed his verdict on each issue framed (see box p.68). All the other judges of the specially constituted constitutional bench of the apex court — with minor quibbling — concurred.

Predictably, Arjun Singh who within the Congress party leads a left wing rump committed to olde world Nehruvian socialism that even the Nehru-Gandhi family has abandoned, greeted the Supreme Court verdict validating the 93rd Amendment and CEI Reservation Act engineered and piloted through Parliament by him, as a great victory. "This is a very historic judgement. Hundreds of students belonging (sic) to the OBC category will be benefitted by it. I am sure all people who want equity in access to higher education will support the judgement," Singh told reporters in Delhi shortly after television news channels interrupted their programmes to flash the Supreme Court verdict and before the next day’s newspapers reported the apex court’s judgement in 40 point all caps headlines.

Although the first reaction of Congress party members and leaders of political parties of the UPA government at the Centre was to flood the Union HRD minister with congratulatory telephone calls for winning a famous victory, careful study of the court’s judgement indicates that neither Arjun Singh, nor the Congress party is likely to reap the electoral bonanza which the 93rd Amendment and the CEI Reservation Act were expected to confer. The fine print of the apex court’s judgement in the Ashoka Kumar Thakur Case has prudently narrowed the discretionary admission power of government and Central government education institutions in the interests of maintaining academic standards and socio-economic equity.

Thus "to balance OBC reservations with other societal interests" and "to maintain standards of excellence" the court has ruled that those admitted under the CEI Reservation Act should also have performed well in institutional entrance exams. As Justice Dalveer Bhandari put it, "cut off marks for OBCs should not be set more than 10 marks out of 100 below that of the general category", i.e 10 percent.

Moreover Justices Payasat and Thakker in their joint judgement suggested that if a sufficient number equivalent to 27 percent of OBC candidates don’t qualify even after being given reasonably lower cut-offs, the lapsed capacity "shall be filled up by candidates from the general categories". These caveats entered by the learned justices in their historic judgement in the Ashoka Kumar Thakur & Ors Case rule out the narration of horror stories by anti-reservationists recounting admission of OBCs scoring half to one-third of cut-off marks and securing entry into institutions of excellence under reserved quotas.

Secondly, while rejecting some petitioners’ arguments that completion of higher secondary school automatically graduates citizens out of the category of socially and economically backward classes, the court observed that reservation should not be made solely by caste considerations. The judges also declined to permit the government to confer the concession of reservation to OBCs in perpetuity. They suggested that the 27 percent quota for OBC admissions should be under "periodic review as to the desirability of continuing operation of the statute" (the CEI Reservation Act). "This shall be done once in every five years," held J.J Thakker and Payasat.

Moreover while accepting that the public interest demands that reservations are also provided in tertiary education institutions to OBCs, some judges of the bench made observations ruling out reservation for OBCs in postgraduate and "super specialties" education. As a consequence while it is well settled practice if not law, that quotas should be reserved for scheduled castes and scheduled tribes in Central and state government owned and/or aided postgrad institutions of learning, these observations of several judges of the bench have cast a cloud over the question of whether OBCs can claim preferential admission into postgrad programmes. Already there is a buzz in the air that the provision of OBC quotas by the country’s six IIMs — quintessentially postgrad institutions — will be challenged in the courts.

Thirdly, the political windfall of the apex court upholding the constitutional validity of the CEI Reservation Act is likely to be far less than expected for the simple reason that the quota legislated for OBCs is restricted to 85 Central government promoted universities and aided institutions of higher learning. State government and privately-promoted institutions of higher education do not fall within its purview. Although state governments routinely legislate substantial quotas for SC, STs and OBCs in institutions of higher learning — in Tamil Nadu 69 percent of seats in government owned colleges and universities are reserved on caste/ backward classes criteria — and have hitherto browbeaten private unaided institutions and institutions of professional education in particular to concede 50-85 percent of capacity to them for allocation, reservation of another 27 percent of seats for OBCs in privately promoted engineering and medical colleges and private deemed universities is an unlikely prospect.

Even though the majority of judges of the bench declined to comment on the issue of whether the additional 27 percent reservation in favour of OBC students is applicable to private unaided institutions on the ground that none of them were petitioners in the batch of petitions heard by the court, in his judgement Justice Dalveer Bhandari citing the historic full bench judgements of the apex court in the T.M.A Pai vs State of Karnataka (2002) and P.A. Inamdar vs. State of Maharashtra (2005) took exception to the inclusion of unaided institutions within the purview of the new Article 15(5) inserted into the Constitution by the 93rd Amendment.

"The right to select students on the basis of merit is an essential feature of the right to establish and run an unaided institution. Reservation is an unreasonable restriction that infringes this right by destroying the autonomy and essence of an unaided institution. The effect of the 93rd Amendment is such that Article 19 is abrogated, leaving the basic structure (of the Constitution — Editor) altered. To restore the basic structure, I sever the 93rd Amendment’s reference to unaided institutions," ruled Justice Bhandari. In the circumstances, now reservations in toto in private unaided institutions of higher education are in jeopardy following the social engineering efforts of Arjun Singh and his coterie.

Yet while learned judges of the Supreme Court have somewhat reluctantly confirmed the validity of the 93rd Amendment and the CEI Reservation Act with several caveats and clarifications, the heaviest blow it has struck against the political calculus of the Union HRD minister (who as several judges sarcastically implied should be paying greater attention to developing elementary and secondary education) is that it has excluded the progeny of the so-called "creamy layer" or affluent OBCs, from availing benefit of the additional 27 percent reservation.

On this issue of the exclusion of the creamy layer of OBCs from the purview of the 93rd Amendment, all the five judges hearing the case were in complete agreement. Indeed Chief Justice Balakrishnan felt it incumbent upon himself to detail the list of classes of persons constituting the creamy layer drawn up by the Union ministry of personnel, public grievances and pensions in its office memorandum dated September 8, 1993 following the apex court’s judgement in Indra Sawhney’s Case (1992), which validated 27 percent reservation for OBCs in Central government jobs.

The list of creamy layer OBCs includes top people in constitutional posts (including Supreme Court and high court judges); top civil servants at the Centre and in the states; officers in the armed forces above the rank of colonel and equivalent; professionals and those in trade and industry with high incomes; property owners and income-rich/wealthy people (with gross annual income of Rs.2.5 lakh for three consecutive years). "We make it clear that backward class as defined in s. 2 (g) of Act 5 of 2007 (i.e. CEI Reservation Act) must be deemed to have been such backward class by applying the principle of exclusion of the ‘creamy layer’," said the chief justice in his order.

Although he has put brave face on it, there’s no doubt that the exclusion of the creamy layer or socio-economically advanced among OBCs from the ambit of reservations in Central government higher education institutions, particularly from the IIMs, IITs and NITs in particular, is a severe blow to the wily HRD minister’s political strategy. It’s hardly a national secret that the keys of the OBC vote banks are tightly held by the new genre of aggressive and affluent OBC leaders who by expertly recalling the historical excesses of upper castes of the Hindu varna system and consolidating OBCs, have begun winning elections in the country’s most populous states, notably Uttar Pradesh (pop.180 million) and Bihar (85 million).

Yet it’s plain as a pikestaff that while in power in the state capitals, they have been busy enriching themselves and advancing their kith and kin without doing much for the material upliftment of those at the bottom of the socio-economic pyramid in OBC ruled states. It’s an open secret that the legislation of reservations for OBCs in the country’s top education institutions was designed to co-opt the OBC creamy layer who have sufficiently good primary and secondary education to aspire for high quality higher education. Singh’s calculation was that in return creamy layer OBCs would swing their vote banks behind the Congress party and win him brownie points with 10, Janpath, i.e Sonia Gandhi. "The hidden purpose of the OBC quota was to push the wards of OBC netas, babus and elite into our top institutions via an unfair handicap. But this strategy has backfired because the court has excluded the ‘creamy layer’," writes Delhi-based columnist Gurcharan Das in the Sunday Times of India (April 20), raising the possibility that the CEI Reservation Act might actually explode in the Congress party’s face as angry OBC leaders turn on it.

But at bottom, even if in their separate judgements in the OBC reservations case the five justices of the apex court have done a commendable balancing job in averting a Parliament-judiciary showdown while expanding the ambit of affirmative action to include genuinely deserving SEBCs (socio-economically backward classes), they have undoubtedly slowed, if not stymied, the halting process of raising academic standards in India’s languis-hing higher education institutions.

Within the groves of Indian academia there is much private head-shaking about growing politically-inspired interference and tinkering with the already considerably eroded autono-my of institutions of higher learning. In the aftermath of the apex court’s judgement, the administrative workload of institutional managers who will have to ascertain the veracity of OBC quota applicants and thereafter ensure they are not of the creamy layer within this reserved category, will increase. Simultaneously with the UPA government having decreed that institutional capacity will have to be increased by 54 percent so that seats available within the general merit category don’t diminish, institutional managements have to quickly recruit additional faculty and plan infrastructure expansion to accomm-odate the 27 percent additional intake.

"Indian academia suffers a glaring lack of infrastructure facilities and competent faculty. While there is a case for inclusion of socio-economically backward castes and classes, the hasty manner in which additional numerical quotas have been decreed makes one wonder how academic institutions will cope with the additional burden. A crisis in politics has been translated into a crisis of higher education. Admittedly there isn’t a necessary contradiction between affirmative action and pursuit of academic excellence. But a fine blending of the two requires a meaningful and creative search for alternative models of affirmative action," says Dr. V.R. Mehta former vice chancellor of Delhi University and currently member secretary of the Delhi-based Foundation for Academic Excellence.

Adds Deepak Nayyar, a member of the National Knowledge Commission and former vice-chancellor of Delhi University (2000-05): "Most Central universities, and certainly Delhi University will find it difficult to expand capacity within the course of just one year. We have neither the physical hardware in terms of buildings, classrooms, etc, nor faculty and other staff to expand so rapidly."

A second more pernicious problem which institutional managers will have to learn to cope with is the virus of casteism which has been let loose in campus India by reckless politicians with greedy eyes on vote banks. Instead of the country moving towards the ideal of an egalitarian casteless society as envisaged by the founding fathers of the Constitution, the incubus of caste consciousness has been injected into Indian academia. Casteist slurs, insults and clashes which are common on college campuses in Uttar Pradesh and Bihar are incrementally likely to vitiate the environments of India’s finest institutions of higher education.

Moreover with socially advanced creamy layer students among the OBCs pointedly excluded from availing the benefit of reservation, the admission of large cohorts of OBC, SC and ST students with weak primary and secondary education into the country’s best higher education institutions — no matter what politicians say — will inevitably dilute academic standards. And in this context it is pertinent to bear in mind that none of India’s domestically much-hyped excellent colleges/universities are included in the surveys of the world’s top universities conducted by the London-based Times Higher Education Supplement and the Shanghai Jia Tong University, China.

Quite evidently the root problem of India’s higher education system which has resulted in the clamour for reserved admission quotas for scheduled castes, scheduled tribes, OBCs and minorities, is insufficient capacity creation. Currently with a mere 0.37 percent of GDP invested in higher education annually, only 11 percent of India’s youth in the age bracket 18-24 can be accommodated in the country’s 352 universities and 18,000 colleges, as against 40-50 percent of this age cohort in western countries and 21 percent in China. Therefore as has been continu-ously advocated in EducationWorld, the annual allocation (Centre plus states) for education needs to be raised from the current 3.9 percent of GDP to 6 percent as recommended by the Kothari Commission way back in 1966, with investment in higher education rising to 1.5 percent of GDP per year.

Moreover additional capacity creation in higher education also necessitates a larger role for the private sector and easy entry of foreign education institutions, many of whom are ready, willing and able to establish branch campuses in India. Yet both these quick capacity enhancement options have been fiercely resisted by Arjun Singh who has prompted the University Grants Commission and the All India Council for Technical Education (both in effect divisions of the Union HRD ministry) to write up stringent regulations to discourage private expansion and foreign entry into tertiary education.

Comments Francis Fanthome, MP, former secretary of the Council for the Indian School Certificate Examinations and a member of Parliament’s committee on Science and Technology, Environment and Forests: "The capacity constraint situation in higher education is likely to worsen after the full rollout of the Sarva Shiksha Abhiyan programme which will result in 50 percent of students completing higher secondary education within a few years against a mere 15 percent currently. There’s a clear need therefore to allow the entry and expansion of public, private and foreign institutions in higher education — to let a thousand flowers bloom."

As has come to pass in Indian industry which is experiencing unprecedented growth as a consequence, liberalisation and deregulation of Indian higher education, cabined, cribbed and confined by a crippling licence-permit-quota regime, is inevitable, notwithstanding the rearguard action being fought by HRD minister Arjun Singh and his band of recklessly regressive socialists. But in the meanwhile in the much-too-few islands of institutional excellence in Indian academia, things will get worse before they become better.

With Autar Nehru & Praful Bidwai (Delhi)