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

Clause 2 of Article 16 of the Constitution states: “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.” Thereby any poor student belonging to a forward caste could justifiably claim that he or she was being discriminated against by exclusion from reservation offered to OBC counterparts.

This perhaps was nullified, and the Supreme Court perhaps was persuaded, by Clause 4 of Article 16 of the Constitution which states: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State.” The same principle may be extended to reservation in educational institutions.

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

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

Clause 4 of Article 16 of the Constitution can override Clause 2 only if we accept caste as the clinching criterion for class. If that is done the OBC creamy 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 Other Backward Classes must rely overwhelmingly on economic factors.

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

April 10, 2008

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