India - Skimming the cream

Last April, when the Supreme Court said that 27 per cent reservation for the Other Backward Classes (OBCs) was Constitutionally valid, it also delivered a blow to the reservationists and the political class in general by saying that the “creamy layer” would have to be kept out of the ambit of reservations. It defined the creamy layer in many ways (based on government criteria). Children of IAS officers could not avail of the reservation for OBCs in colleges; nor could children of those holding Constitutional posts like the President. Other excluded categories were the children of senior people in state-owned undertakings and in the armed forces. If the parents’ land holdings were above a certain size, the same applied. Last of all, there was an annual income ceiling. This level was stipulated as Rs 100,000 in 1993, and redefined as Rs 250,000 in 2004. This has now been increased to Rs 450,000 — which more than corrects for inflation in the intervening years. That would suggest that the government’s real intention is to dilute the Court’s decision and narrow the definition of the creamy layer, so that more people become eligible for reservations. But since the criterion of parents’ occupation will continue to apply, the substance of the Court’s verdict probably stands. In the absence of detailed data, however, it is difficult to say just what proportion of people who will now qualify under the new income criterion, will continue to be excluded under the parents’ occupation and landholding criteria.

The question then is whether the country is back to the pre-April situation, in which the Court tried to ensure that caste alone was not the criterion by which people got entrance into colleges. The April judgment itself, and the Court reiterated this last month, had said that if colleges were not able to fill up the OBC quotas, the seats would be available for candidates in the general category. Even anti-reservationists celebrated this, for scarce seats would not be wasted. Second, the Court had ruled that while reservations were Constitutionally valid, merit could not be given the complete go-by, and the maximum relaxation in marks that could be allowed was 10 per cent. This presents even now a quality hedge for all educational institutions.
However, a great deal depends on whether the central government chooses to go by the spirit or the letter of the judgement. There were five judges on the Bench in April, including the Chief Justice. Only one of the judges was unequivocal and said that cut-off marks for OBCs should not be relaxed beyond a maximum of 10 per cent. Two others were in favour of something similar, but left it to the government after indicating the manner in which this could be done. They said, “The Central Government shall examine as to the desirability of fixing cut-off marks in respect of the candidates belonging to the Other Backward Classes (OBCs). By way of illustration it can be indicated that five marks grace can be extended to such candidates below the minimum eligibility marks fixed for general categories of students.” The other two judges did not get into this question. In other words, while the spirit of the majority judgment was to retain a merit criterion, it is open to the government to define how it will interpret and implement this. If the move to raise the income ceiling for being excluded from the creamy layer is any indication (and bear in mind that less than 5 per cent of all families will be earning more than Rs 4.5 lakh annually), the government has made its intentions clear.