There would seem to be no end to the reservations debate, with the Supreme Court's halting in its tracks what all the political parties together had crafted as a major social justice measure that struck a fair balance between the interests of different sections. What is surprising is that the court should have stayed the operation of the law so close to admission time, and that when the institutions were preparing to increase the number of seats over three years to provide for reservations. Over the years, a great deal of uncertainty has been introduced into the constitutional law on reservations by differing opinions handed down by different benches and a plethora of year to year stay orders. The strategies of various governments in resorting to constitutionally impermissible quotas and procedures and trying to sneak under the radars of the courts have only worsened the situation. In essence, under the new law, both the identification of the Other Backward Classes and the 27 per cent figure for reservations followed the earlier government order that reserved posts in government services on the basis of the Mandal Commission recommendations. A nine-member bench of the Supreme Court upheld that order. Yet this time round the court chose to question the validity of the use of the 1931 census as the basis and point to the absence of any new survey of backwardness as a major infirmity in the reservations system. It needs to be noted that in the census operations subsequent to 1931 caste-wise data were not gathered.
The bench was on stronger ground, however, on the issue of the creamy layer that has not been excluded from the purview of reservations. This non-exclusion goes to the basic question of identification of a class as backward. For unless those who occupy constitutional positions such as Governors or are members of the all-India services or are professionals such as doctors, lawyers, and chartered accountants or are affluent and do not suffer social or educational disadvantages are excluded, a caste cannot be categorised as a backward class. It is also obvious that in a competitive environment if such advanced categories are provided reservations, they will crowd out the really backward among the OBCs. Indeed, no argument based on equity or fairness has been advanced in support of the reluctance of the State governments — and now the Centre — to exclude the creamy layer from reservations. Equally relevant is the issue of keeping out certain areas such as airline pilots, higher specialities in medicine or engineering or research, and the armed forces outside the scheme of reservations. The overall national interest would also require preserving certain institutions such as the Indian Institutes of Technology and the Indian Institutes of Management as islands of excellence uncompromised by any other consideration.
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