Pending and Current OBC Issues for Second Round ofAffirmative Action and the Ram Singh and Others VsUnion of India Judgment

Harnam Singh Verma

This is a piece which not only reflects on the Ram Singh andOthers Vs Union of India case decided by a two judge Bench of theSupreme Court on 17 March, 2015 but ,more impartently,connects itwith the pending and current OBC issues for the second round ofaffirmative action. It is organized in five parts. These dealwith: 1. Pending and Current OBC Issues for Second Round ofAffirmative Action; 2. The Report Card of an AmericanJurist ,Marc Galanter’s Analysis on Higher Judiciary inDeciding Issues on Law on Reservations Prior to IndraSawhney(1992);3 The Ruling of the Indra Sawhney onIdentification of the Backward Class of Citizens and the Doctrineof Specification ;4 Performance of Higher Judiciary on thePrinciples of Stare Decisis in the Post-Indra Sawhney Phase ; and5 Where Does the Judgment in Ram Singh Case leave the OBCs?

I

Pending and Current OBC Issues for Second Round ofAffirmative Action

To provide the necessary background the pending and current OBCissues are presented first. These deal with six major dimensions.In the analysis that follows, we discuss the important ones amongthese.

One, the National and State Commissions for Backward Classes, theinstitutions established to identify and recommendinclusion/deletion of the OBC communities in to the lists of the

OBCs in the Central /state lists following the direction givenby the majority judgment of historic Indra Sawhney case in 1992themselves need urgent oxygen. Quite a few states have made pettypoliticians without needed competence and commitments to the OBCcause their members. In February 2011, for example, the state ofUP had as many as seventeen Members, none of whom could evenproperly answer questions about OBC issues, much less solve them.But then, that is not for which they have been appointed for: theBSP chief, Mayawati, had given them party work mostly in otherstates and they were hardly expected to worry about non-performance of OBC tasks in UP! The Government led by AkhileshYadav has not done any better either on this issue where everyissue acquires Safai and Yadav clour!

The Special Constitution Bench of the Supreme Court had givenspecific direction in Indra Sawhney judgment ( Para 847) that themembers of these institutions should be experts. Therefore,compositionally, only acknowledged experts, drawn from socialsciences, administration, judiciary and political fields, shouldhave been made their full time members. Adequate research andother support staff, which enables these bodies to perform theirtasks efficiently, should be made available. But that is not thecase. Funds for efficient conduct of their functions (includingconfidential work) should be given and should be in theirpermanent budgets and their availability should not be at themercy of the department administratively handling theseinstitutions. These institutions should display full transparencyin handling petitions, which they are not at present. Copies oftheir recommendations and the notification(s) of the governmentshould be made available to the petitioners and put on theirwebsites. Their members should tour interior areas to meet peoplewithout voices. Central and state governments have been takinginordinately long-time in processing inclusion recommendationsand then in notifying inclusions. They are also not necessarilyfollowing advises/decisions handed on complaints of denial of 15

(4) and 16 (4) benefits, which was made ordinarily mandatory bythe Indra Sawhney directive.

Two, the Indra Sawhney verdict had recommended revision of theOBC lists, Central and state, after every ten years. This was duein 2002. Therefore, the GOI asked the Backward ClassesCommissions, central and state, to carry out this task aroundthis time. Not endowed with either adequate competence orresources to undertake this onerous task, the Commissionsestablished for the identification of the OBC communitiesindicated their inability to do so. Even to date, the OBC listshave only changed to the extent that some additions have beenmade in them due the deliberations of the BCCs. However, none ofthe BCCs have recommended any deletions from the existing lists.Several anomalies plague these imperfect lists. Some communitieslike the nomads, ex-denotified tribes/ex-criminal tribes, etccontinue to be out of any of the lists of the marginalizedcommunities (SCs, STs, OBCs) in many states. Some of thesecertainly qualify for inclusion among the OBCs. On the otherhand, dominant communities that actually control the society,economy and polity of major states, continue to remain listedamong the OBCs. More than 70 per cent of the population ofsouthern states figures in their OBC lists. In any exercise ofthis nature, tests indicated by the Supreme Court under itsdoctrine of specification (i.e., database, consideration ofavailable alternatives, application of mind, etc) have to bestrictly followed. Following the doctrine of specification route,correction of such anomalies requires a community/ caste-basedcensus. The lack of precision in the OBC lists has preventedpercolation of 15(4) and 16(4) benefits particularly to theweakest and most needy communities, generally referred to as themost backward communities (MBCs). This would certainly requiresub-division of the lists and apportioning of the benefits pro-rata. The National Commission for Backward Classes made such arecommendation in May 2011. More or less endorsing this step, in

November 2011,a sub-group of the Planning Commission recommendeddivision of backward castes in the umbrella OBC list and theirlisting as “backward” and “most backward”. The landmarkinitiative, with implications for OBC mobilization andapportioning reservation benefits, however, did not gather neededmomentum thereafter as the governments both at the Centre as wellas the states were quite lukewarm to this step as a policyobjective. Quite possibly, this move may have invited stiffresistance from dominant sections since it would have tended toshrink their share of the 27 per cent Quota pie to a fractionproportionate to their strength in the total OBC population. Thesub-division of the OBCs is already in force in many states.However, successive regimes at the Centre have avoided followingsuit for fear of backlash from the dominant groups.

Another dimension was added to the OBC sub-division issue afterthe recommendations of the Rangnath Misra Commission. Given theonslaught on the UPA-II government on the issue of corruption in2010 and 2011, the Prime Minister was keen to move fast on theCongress’s poll promise of reservation to socially andeconomically backward minorities, especially the Muslims to bringthem back to Congress fold electorally. The Ministry of MinorityAffairs proposed in November 2011 creation of 8.4 per cent sub-quota for minorities—of which 6 per cent should be for Muslims---within 27 per cent OBC quota. Eventually, however, only a 4.5 percent sub-quota for the Muslims was given by the Union Cabinet inits meeting on December 22, 2011. This move was particularlytargeted at UP state Assembly election 2012.The same gambit wastried again during the May 2014 Parliamentary elections. Thesemoves set the cat among the pigeons for parties like the SP asit tended to pit two crucial vote banks—Muslims and OBC Yadavs—against each other. Since the OBCs in UP are still not seen asthe Congress’s base, expecting them to make way for a slice forminorities may not hurt Congress’s support base. Since theconcept of creamy layer is applicable for OBC reservations, the

government hoped a sizeable section of the Muslims, who were andare socially and economically backward, would have benefittedfrom the move. Creating a 4.5 per cent quota for minoritieswithin the OBC quota would have also benefitted Christian andSikh backwards and other non-Hindu castes among OBCs. In terms ofempirical ground reality of the Muslims, it is indeed a fact thatmajority of the Muslims are socially and economically backward.Nine states have already introduced a sub-quota for the Muslimsfrom the OBC reservation. However, this reservation is notsimilar in those nine states: some among them, like Kerala, treatthe entire lot of Muslims as backward while certain others havekept this sub-quota for only identified backward communities fromthe Muslims fold. The inclusion of Muslim communities among theOBCs is a touchy political issue and is under legal challenge inTelangana and Andhra Pradesh and Maharashtra.

The OBC lists would also require weeding out undeservinginclusions in quite a few states (like the Lingayats andVokkaliggas in Karnataka). Then there are cases like the entry ofTea Garden Labour in Assam, and the Gujjars in Rajasthan. In theformer, what were STs in their native states (Odisha andJharkhand), have been, on immigration and work in tea gardens inAssam, listed as OBCs. So far, this issue has erupted violentlyat least on three occasions and resulted in a lot of bloodshed.Both the Congress as well as the AGP governments have beenresponsible for this turmoil. In case of the Gujjars ofRajasthan, it is indeed a fact that the Gujjars of some areas inRajasthan are a pastoral community. After three violentstruggles, the Gujjars are yet to get what is their legitimatedue. On the other hand, the Meenas, who have, during the last 67years of post-Independence existence, lost even some attributesof the tribes that facilitated their dubious listing as a tribein Rajasthan. But given their numerical political clout they haveremained in the list. In the meanwhile, the Marathas ofMaharashtra, controlling the polity, economy and society of the

state, got themselves enrolled in the OBC list in their eighthattempt although the Mumbai High Court has stayed the decision.

The correction of the OBC list is now crucially dependent on theoutcome of the caste Census. The UPA-II kept on reneging on itscommitment given the Parliament to carry out a caste census alongwith the Census 2011. Later under a great deal of pressure, itagreed to bunch it with the BPL survey that was to be carried outby the Ministry of Rural Development. Sharad Yadav, a prominentJD (U) MP from Bihar and a staunch OBC cause politician, in apiece in The Indian Express (12th July 2011), denounced thisdishonouring of a commitment to the Parliament. He also indicatedthe methodical inadequacies of OBC enumeration via the BPLsurvey. The BPL survey, he argued, would not cover the entirepopulation; socio-economic conditions of various castes and theireducational status would also be not collected through this BPLexercise. The data that would be generated by this BPL surveycannot help evaluate the impact of reservations on variouscastes. Hopefully, as and when this socio-economic-caste censusis completed, the inclusion/exclusion exercise of the OBCs isexpected to become somewhat more fact-based. While the SpecialConstitution Bench in Indra Sawhney1992 had ordained collectionof caste-wise data, in a bizarre judgment in 2014, a two judgebench of the Supreme Court rejected the petition to carry out acaste census to determine the relative position of differentcommunities in the country!

Three, social scientists like Satish Deshpande and Abu SalehShariff have shown through their macro-analyses the widedifferentials in the status of the backward communities and theupper castes in the Indian society. Whereas these show thevertical fault-lines in the Indian society, horizontaldifferences within these categories and sub-categories remain tobe analyzed. Rapid socio-economic changes have been taking placesin different parts of the country. These changes have certainly

altered the existing socio-economic-cultural reality of even thetraditionally upper caste /crust communities. Therefore, aperiodic assessment of relative socio-economic-cultural status ofall the communities might be a very plausible option to takepolicy decisions on inclusive and affirmative policies ofdevelopment. The establishment of an Equal OpportunitiesCommission that could look into these issues has been in the airfor quite a while now. In fact, a Committee led by Amitabh Kunduhad already devised a Diversity Index to facilitate thisexercise. The NSSO has been undertaking exercises in whichcategories like SCs, STs, and OBCs have figured and interestinglyenough have gone to highlight the inadequacy of the developmenteffort undertaken by the government so far.

In addition, the Central as well as the state governments need toknow the extent of emancipation /empowerment of all the backwardcommunities (SC, ST, OBC, nomadic, denotified and semi-nomadic)obtained as a result of various programmes launched by thegovernments. This type of assessment is needed vertically as wellhorizontally not only among the backward but also among theremaining upper caste communities to indicate relative progressof development effort in the post-Independence period. This isalso required to show the relative position of the backward andforward communities. While the Planning Commission and theGovernment of India have not found enough funds for ameliorativemeasures for the OBCs, the Ministries of HRD, and Railways, GOIand the governments of UP, Rajasthan and Bihar are now allocatingrelatively larger funds to the ‘economically poor’ among theupper castes that was termed as unconstitutional by Indra Sawhneyin 1992. Despite such a rebuke from the highest court, aCommission for the Economically Backward Classes at the Centre isexisting and it submitted its report to the then Mukul Washnik,the Minister for Social Justice and Empowerment on July 24,2009.Its recommendations were to carry out a survey among the non-ITpayee upper castes that are to be treated as economically

backward classes (EBCs) and indicate their needs and payment ofRs. 10,000 to each family as a gesture of concern for them! Itpegged the EBC number at 20% of total upper castes population of32.8 %( roughly 6 crores).No one from the academics, who hadroutinely cried themselves hoarse on Mandal Commissionmethodology, questioned the methodology of this Commission sinceit was meant for the upper castes!

Four, the reservations under Articles 15(4) and 16 (4)materialized for the OBCs after a great deal of struggle andprolonged legal battles. The entrenched upper castes in the powerstructures have seen to it that they are not implementedproperly. They have also ensured that no proper data ismaintained for this purpose. Therefore, it is almost impossibleto get the correct figures of such reservations either at theCentral or state levels. Even the Mandal Commission received atotally incomplete data set regarding 16(4) when it wascollecting information for its report. Subsequently, the AnnualReports of the Ministry of Social Justice and Empowerment havenever collected these figures. The state governments have alsoemulated this Central tendency. A RTI activist Murlidharan fromChennai asked for the status of OBC employees in the CentralGovernment institutions. After great deal of delays, he was givenincomplete information in September 2010.Six of the CentralMinistries / institutions did not supply the sought details. Theinformation supplied was also not up to date either. According tothis data, as on January 1, 2008, after 17 years of the provisionfor reservations to the OBCs, the total number of OBC employeesin the central government institutions was just 1, 93, 228, andthere were only 5,031 Group A OBC employees; Group B had 3.9 percent; Group C had 8.1 per cent; Group D had just 5 per cent. Thecumulative strength of the OBCs employees was only 7 per cent asagainst a provision of 27 per cent in law.

Five, very few people have had a more non-partisan anddispassionate look at the non-reservation recommendations of theMandal Commission or for that matter the recommendations of the XFYP Working Group on the OBCs (of which incidentally I too was aMember)for helping the diverse OBC communities to acquire skillsand stand on their own dainty feet. Even the financialallocations for the thoroughly inefficient Central and stateNBCFDCs have been, when juxtaposed with the enormous numbers ofthe OBCs, have been quite meagre. This cannot produce a rabbitout of their hats.

Six, the OBC political outfits the DMK in Tamil Nadu, the SP inUP, and the RJD in Bihar, have now become family firms of theirso-called ‘supremos’. Their reign on mere rhetoric of OBCempowerment sans visible delivery of the tangibles on the groundhas reached its last journey. Therefore, the OBC communitieswould have to reinvent a more down to earth task deliveringpolitical route for retention of their hard fought politicalprimacy in the political terrains. The next round of reservationpolitics, as argued by Satish Deshpande and Yogendra Yadav, wouldthus be between those who have benefited from the reservations sofar and those who have not. There will be identity politics butit will manifest itself in the tussle between Yadavs and non-Yadavs, between the economically backward classes (EBCs) and theOBCs, between Dalits and the MBCs and between Jats and non-Jats.For a while the Bihar political model of Nitish Kumar, which hadinvolved, among other things, re-building of state law and orderand governance structures, inclusion of backward Muslims(Pasmanda), cobbling of a bottom up rainbow coalition of non-Yadav MBCs, non-Paswan SCs, and bringing to an end open anarchyin Bihar’s society, economy and polity, appeared to be anappropriate model for emulation by other OBC leaders. However, itis in shambles now. Even otherwise, other OBC leaders likeShivraj Singh Chauhan of Madhya Pradesh and Ashok Gehlot ofRajasthan did demonstrate their skills to politically handle the

fusing of OBC interests with the upper castes. What they have notdone so successfully is addressing of the pressing issues ofempowerment of the OBCs.

II

The Report Card of an American Jurist ,MarcGalanter’s Analysis on Higher Judiciary in DecidingIssues on Law on Reservations Prior to IndraSawhney(1992)

Indra Sawhney (1992) was a watershed event in the tortuousjourney of evolution of case law on reservations in India. Givingits highlights is an essential prerequisite to reflect on theperformance of higher judiciary in the period thereafter becauseof two reasons: one, Indra Sawhney was not an ordinary decisionon the VP Singh OM of 1990 but an authoritative delineation oflaw on the question pertaining to 13 major sub- issues framed bythe Five Member Constitution Bench of the Supreme Court itself;second, among other things its reviewed all major SC decisions onthe 13 issues that were decided previously and pronounced theverdict whether they were correct or had flaws in them. There isalso a third reason: it provides an excellent benchmark on thesubsequent performance of the higher judiciary on the reservationissue.

This is accomplished by my well-known piece “Evolution of CaseLaw on Compensatory Discrimination, 1950-1990: A ContemporaryAssessment of Marc Galanter and Higher Judiciary in India”,pp.325-342 in H S Verma, The OBCs and the Ruling Classes inIndia, New Delhi and Jaipur, Rawat Publications, 2005.It isneither necessary nor convenient to quote it in its entirety:its highlights would suffice. As the title of the analysis itselfsuggests, it is simultaneously an assessment of reputed juristMarc Galanter’s analysis of a thirty year period as well as the

verdict on performance of the higher judiciary on the doctrine ofstare decisis (consistency, certainty, and continuity) on issuespertaining to the reservations. This piece is organized in tothree sections: Galanter’s background, database, arrangement ofanalysis and approach; the inadequacies of Galanter as well asthose of higher judiciary in India until Indra Sawhney; andpresence or absence of certainty, consistency, and continuity inthe subsequent decisions of the SC.

Galanter is a votary of affirmative action without any trace ofdoubt. Precisely, because of this very stance, however, he shouldhave balanced sources of his empirical material, and should havebeen somewhat more broad-based in his analytical methodology tooffer a balanced picture of the empirical reality of theoperationalization of affirmative action in India.Galanter’s‘Preface’ in the 1984 as well as 1991 editions and thereferences, impressive as they are, spill the beans! Adispassionate and more informed conclusion which emerges from acritical evaluation of both sets of these evidences ( as forexample in H S Verma, The OBCs and the Dynamics of SocialExclusion, New Delhi, Serials, 2006 and Christophe Jaffrelot: TheRise of Low Castes in North India, 2007) makes it obvious thatGalanter interacted more with professionals belonging to only oneside of the dispute(viz.,the anti-reservationists). As aconsequence, even though he is not intentionally biased, the non-inclusion of the arguments and empirical evidence of the otherside, which has also largely gone unpresented before the higherjudiciary, has somewhat tainted his analysis and conclusions. Forexample, among sociologists who have done considerable on theissue, Galanter has interacted only with anti-reservationists: hedid not consider it worthwhile to interact with such sociologistswho provide alternative viewpoints and hard empirical evidence ondifferent dimensions of inequality, exclusivity of some andexclusion of the BCs from power in the Indian society. He hasmissed major debates on caste, class and power which appeared in

the two mainstream sociological journals (viz., The SociologicalBulletin and Contributions to Indian Sociology (both old andnew)) in addition to other fora like The Economic and PoliticalWeekly, Frontline, and Mainstream. It is precisely because ofthis inadequacy that even his Chapter ‘Compartmentalized Society’containing sociological material, although very well-written andcrisp piece on hierarchical Indian society, misses many crucialdimensions of exclusivity and exclusion from power of thedeprived sections. Similarly, among Indian jurists, his contactswere confined to the anti-reservationists and only one from thepro-reservationists. Significantly enough, even though he wasbased at the Indian Law Institute, located opposite the SupremeCourt of India affording easy accessibility to India’s leadinglegal jurists, he did not avail of that opportunity of meeting/discussing issues with jurists who have all made alternate andoutstanding original contributions to the legal debates oncompensatory discrimination in India.

Among the various historians, he refers to a few like Frankel(1978) but without balancing his narrative. In fact, he evenmisses the major findings of Frankel regarding the realintentions of the ruling class and character of planned change inIndia. Of the many traditions in historiography, he certainly hasnot used any worthwhile material from oral and subaltern schools.It is quite possible that given the benefit of the foregoingviewpoints and set of facts, Galanter’s analysis might haveundergone a directional change and become more evenhanded andforthright.

Galanter uses data from two major sources for his analysis---secondary data from government committees / commissions,periodical official reports, memoranda, etc., for the policiesand programmes of compensatory discrimination and primary data ofthe cases in the higher judiciary on different dimensions /issues of compensatory discrimination until 1980.Both these sub-

areas require independent, primary data to facilitate credibleassessment of the type attempted by Galanter. He has not donethat. In fact, his assessment of policies and programmes ofcompensatory discrimination in India begins with a falsesupposition in his ‘Introduction’, where he states that thepolicy has been pursued with remarkable persistence and generosity(1991:1, emphasis contributed).No informed, balanced and fairscholar could begin an analysis with this kind of prejudicedview. Galanter carries forward this prejudice when he actuallyattempts the assessment in several sub-sections of his book:Chapter 3 about compensatory programme and their administration(pp. 41-83) and Chapter 4 on employment (pp. 84-117) in Part-I,and Chapter 14 in Part-II (pp. 447-521). In Chapter 16(pp. 547-568), he draws a similar overall conclusion. Galanter is not onlythe first scholar who has accepted secondary data from officialsources as ‘gospel truth’: he has done one better. Withoutproviding any original primary data himself or referring toothers who do so on many of the critical issues, he makesconflicting statements about availability of data on the same aswell as on different dimensions of compensatory discrimination.For instance, on reservations in government employment, he statesat one place that:

“ …. While insufficient in many respects,(the data) are more abundant, accessible, andreadily comparable than in any other field of policy(1991: 85)”

And, later, he also says:

“…. This incomplete and spotty data enable us to make an initial quantitative sketch ofperformance of government posts (1991: 105)”

This view is in direct contrast to near unanimous view of thescholarly and legal communities that not much of data exist on somany normative assertions of anti-reservationists(i.e., allegedeffect on merit,efficiency;caste and occupation; performance ofso-called meritorious appointees in social, educational,

political, economic, administrative and cultural fields;dimensions of exclusivity of power in different states in formaland informal structures and processes; mechanisms of exclusionresorted to by the upper castes vested interests,etc) on whichhigher judiciary has given definitive judgments. Galanter has hisown reasons for arranging the material in the sequence he has,but to an informed reader it saddles him with tasks for he maynot have bargained for. For example, the meatiest part of hisbook dealing with the analysis of court cases is followed, andnot preceded by the analysis of the judicial context. The readeris then required to juxtapose the prevailing peculiarcharacteristics of the bar, judiciary, and litigation oncompensatory discrimination in India with specifics ofcommissions / omissions by the legal fraternity to make his ownjudgment about correctness, or otherwise of the rulings whichhave materialized. Even this description of the judicial contextdoes not refer to many of its glaring ills quite a few of whichwere listed by some judicial luminaries themselves by the timeGalanter wrote his book. More devastating instances and traitshave surfaced later (Baxi: 1991, Iyer: 1991A, 1991B, Mahajan:1992).Galanter’s paperback edition of 1991 does not fail to takea pot shot at the Mandal Commission but does not update hisanalysis by adding cases (e.g., Vasanth Kumar 1985), newer traitsdisplayed by the legal fraternity and empirical evidence broughtout in many other dimensions.

There is a consensus among the Indian power elites on how to keepthe BCs out of the power apparatus. Each segment of them isplaying its assigned role in this task. Viewed from this angle,there is a kind of good fit among the viewpoints of theestablishment, academic fraternity, the press, the bureaucracy,politicians, the bar, and the judiciary. Despite constitutionalguarantees, the power elites want to give only notional share inthe cake to the SCs, STs, and want to keep out the OBCs, of thenorth at least, almost entirely. Although appearing to be

somewhat academically critical on a few occasions, Galanter tootoes this line.

In terms of substance, and dissection of the rulings of thehigher judiciary, Galanter brings out its inadequacies throughouthis analysis of different sub-themes. However, he refuses toseparate himself from the zig-zag, inconsistent, constantlyshifting, inappropriate, quite often illogical, evencontradictory approach adopted by the higher judiciary on some ofthe related issues. For all his legal insights, it is difficultto understand why Galanter has not specifically differentiatedthe cases pertaining to ameliorative measures under Article 15(4)and employment under article 16(4),the normalization ofdistribution of power via government job models (such as the onesoperative in the north Indian states),and why he has totally leftout the political dimensions of the affirmative action. It isdifficult to swallow the line that he does not know what C WrightMills (1956), Therborn (1980), and Sethi (1969) have writtenabout the games played by the power elites in perpetuatingthemselves and protecting their self-interests.

Galanter’s entire narrative, although pointing out a large numberof flaws on various sub-themes ,read in tandem with his analysison judicial intervention (1991:477-521,Chapter 14), gives animpression as though the cause of pro-reservationists has beenlost by default; that despite the damning evidence which his owndissection of various cases provides, the higher judiciary hasnot shown a distinct class bias in favour of the vestedinterests; that it has not treated normative submissions by theanti-reservationists without any empirical evidence as gospeltruths and whether by its intent or design it has allowed thebalance of convenience most often favour the anti-reservationistswhile granting reliefs, interim or permanent.

As it turns out, Galanter’s discussion of ‘judicial intervention’(1991:477-521,Chapter 14) assessing the role of the higher

judiciary in developing, elaborating, criticizing, effectuatingand legitimizing the law on compensatory discrimination is aseries of half-truths. It is not what he has concluded isentirely incorrect: the untruth lies more in what he has notwritten about and more importantly, not concluded.

Presenting Clear Evidence of Inconsistency,Uncertainty, and Lack of Directionality and Yet NotPronouncing Deserving Judgment on the Conduct of HigherJudiciary

Galanter did record judicial inadequacies that he preferred tocall ‘conceptual problems’ (p.535).Among these he lists thefollowing:

Abiding confusion surrounding the use of (i) castes as thekinds of classes that are deemed backward, and (ii) the useof caste rank or standing as a measure of backwardness (p.535).

Permitting religious tests (for membership of SC and ST) andportraying Indian society as a closed one with mutuallyexclusive compartments arranged in an unambiguous rankorder(p. 535-36).

Failure to reconcile economic tests with commercial units orhow economic tests may be directed to the purpose ofovercoming accumulated inequalities (p. 536).

Quantitative limits of preferences not related to the amountof net effects of preferences (p. 536).

Insistence on both social and educational backwardness andtreatment of whole group(s) uniformly although their degreeof inequality varies (p.536).

No indication of standards for assessing the weightage ofinterests to be balanced against compensatory preferences(p. 537).

No differentiation between historically disadvantagedsections and various kinds of personal and circumstantialdeprivation—in fact the latter is more sweeping, often area-based(p. 537).

Absence of doctrine by which they could reach theaffirmative problems of compensatory discriminationpolicy--- that is by which they might ensure that thedeserving are included among the beneficiaries; that thepreferences are of sufficient in scope and amount andeffective fashion (p.537).

Judicial unresponsiveness to action as contemplated underthe Directive Principles of State Policy (p. 545).

Lack of independent fact-finding apparatus (p. 545).

Galanter also indicates that the judicial review recourse can bemade use of only by the resourceful; that the court verdicts arebased on narrow segment interest cases; and that cases areconfined more to existential rather than long-term interestsembodied in the compensatory principle (p. 542-543). He alsorecords that by virtue of their training, experience andpositions, judges hold views of the society that are to someextent partial and distorted(p.540). Thus, a large number ofissues emerged from first round(1950-1980) of legal battles overcompensatory discrimination provisions, policies and programmesin India.Galanter quietly put them under the carpet by notsumming them up or not even pronouncing any clear headedconclusions. We may refer to the following:

Specific prescriptions /proscriptions made by the judiciarywhich go against the letter and spirit of the IndianConstitution and which may amount to repudiation of thecommitment made by the national leadership, ConstituentAssembly, and the Indian Parliament. In many cases, it alsoamounted to appropriation of the territories of thelegislatures and the executive.

Bring reasonableness, balance, consistency, and finalityinto constantly shifting, unreasonable, incorrect andcontradictory rulings by various courts on a large number ofdimensions.

Making directions practical, and technically / procedurallycorrect.

Clarifying some of the grey areas.

To conclude, Galanter’s contribution in the ultimate analysislies not so much in what he has achieved(which is, by no meanssmall); rather it lies more in what he may have spurred on othersto undertake struggle for regaining the lost space,honour,dignity and equality in different categories of the BCs.Galantermay have hit the nail on the head when he stated that the comingmajor round of adjudication may involve courts and litigantsequipped with enhanced capabilities to address the fundamentalquestions of policy implicit in the commitment to compensatoryprinciple(1991: xxxvi). He proved to be a soothsayer as IndraSawhney followed where for a change the pro-reservationistsdemonstrated this enhanced capacity to fight injustice!

III

The Report Card of Indian Higher Judiciary onLaw on Reservation Given by the JudiciaryItself!As already analyzed, Galanter had contributed his part in puttingunder the carpet the dubious conduct of the Indian higherjudiciary through his book, and, as you have seen, I have nailedhim while also acknowledging his singular contribution. Butinterestingly enough a public acknowledgement of this misdemeanorof the Indian higher judiciary came through more definitivelythrough the tortuous journey of the Indra Sawhney case itself by

the two (5 and 9 Member)Constitutional Benches of the SupremeCourt itself!

As you know, following the issuance of the V P Singh OM on 27 percent reservations to the OBCs in the services under the state in1990, there were widespread instigated protests, ‘organized self-immolations’ and extensive damage to the public property. Publicinterest writ petitions were filed before various High Courts andthe SC. Eventually, all the cases were pooled and a three MemberBench of the Supreme Court heard these petitions. By its order ofSeptember 21, 1990, it refused to intervene on the ground thatthe matter was a political one. The Court, considering thegathering storm and turmoil, however, issued an appeal to thenation--- a step unprecedented in the history of Indian judiciaryuntil then---- that the matter was being adjudicated upon andeverybody’s rights would be protected. When the social turbulencedid not subside, a five member Constitution Bench stayed theoperation of the OM on October 1, 1990. It was this Bench of theSC that eventually came to the inevitable conclusion that thejudiciary had flouted all three dimensions of the doctrine ofstare decisis—consistency, certainty and continuity--- on law ofreservation and then asked the two contending parties to assistit to frame issues that would be heard and decided by a 9 MemberSpecial Constitution Bench that would not only decide the IndraSawhney case but also reinterpret important previous cases onthese identified issues and indicate whether the judgmentsdelivered were correct or were to be over-ruled.

This 5 Member Constitution Bench identified 14 major issues onwhich it decided that the 9 Member Special Constitution Benchshould deliberate and pronounce what it came to call as‘authoritative’ judgment. This admission is recorded by JusticeJeevan Reddy who wrote the majority judgment of the Indra Sawhneyin 1992:

“Several judgments of this court have not spoken in the same voice on the issue and afinal look by ager bench in our opinion should settle the law in an authoritative way”(Para 679: Indra Sawhney)

The Indra Sawhney case examined the following issues, put asquestions before the Special Constitution Bench, to settle themauthoritatively:

Question 1(a): Whether the ‘provision’ in Article 16(4) must necessarily be made by theparliament /legislature?

Question 1(b): Whether an executive order making a “provision” is enforceableforthwith?

Question 2 (a): Whether clause (4) of Article 16 is an exception to clause (1)?

Question 2 (b): Whether Article 16(4) was exhaustive of the concept of reservations infavour of the backward classes?

Question 2 (c): Whether Article 16(4) was exhaustive of the very concept of reservations?

Question 3 (a): Meaning of ‘backward classes in Article 16(4)

Question 3 (b): Identification of ‘backward class of citizens’.

Question 3 (c): Whether backwardness in Article 16(4) should be both social andeducational?

Question 3 (d): “Means Test’ and ‘Creamy Layer”

Question 3 (e): Whether a class should be situated similarly to the SCs/ STs?

Question 3 (f): Adequacy of representation in the services under the state

Question 4 (a): Whether the BCs can be identified only and exclusively with reference toeconomic criterion?

Question 4 (b): Whether a backward class can be identified on the basis of occupation-cum-income without reference to caste?

Question 5: Whether BCs can be further sub-divided into backward and morebackward categories?

Question 6(a): Whether the 50 per cent rule enunciated in Balaji was binding rule ofcaution or rule of prudence?

Question 6 (b): Whether the 50 per cent rule, if any, was confined to reservations underArticle 16(4) or whether it took in all types of reservations that can be provided underArticle 16?

Question 6 (c):While applying 50 per cent rule, if any, whether a year should be takenas a unit or whether total strength of the cadre should be looked into?

Question 7: Was Devdasan correctly decided?

Question 8 : Whether reservations were anti-meritorian?

Question 9: Would the extent of judicial review be limited or restricted in regard toidentification of the BCs and the percentage of reservation made for such classes, to ademonstrably perverse identification or demonstrably unreasonable percentage?

Question 10: Whether the distinction made in the second OM between ‘poorer sections’of the BCs and others was permissible?

Question 11: Whether the reservation of 10 per cent of the posts in favour of ‘othereconomically backward sections’ of the people who were not covered by any of theexisting schemes of reservations made in the OM of September 25,1991 waspermissible?

Question 12: The concept of positive action and positive discrimination

Question 13: Desirability of a Permanent Statutory body to examine complaints of over-inclusion /under-inclusion

Question 14 : Should the matter go back to the Constitution Bench to go into thedefects of the Mandal Commission Report?

Thus, when the 9 member Special Constitution Bench pronounced itsjudgment on Indra Sawhney (1992),it had six separate judgmentstotaling 866 pages and about 500 printed pages of fools-cap size.

The leading judgment was written by BP Jeevan Reddy,J(for HKania, CJ and MN Venkatchaliah.AM Ahmadi, JJ and himself with RSPandian and PB Sawant, JJ concurring by their separatejudgments. The dissenting minority was comprised of Dr. TKThommen, Kuldeep Singh, and RM Sahai , JJ, each one deliveringhis separate judgment. The minority also pronounced a combinedorder on their behalf. The judges ranged on the side of majorityand minority took independent positions on different issues. Atsome places, the judges of minority side individually agreed withthe leading judgment while on certain others the judges on themajority side individually disagreed with the leading judgment.All the judgments also did not necessarily answer all thequestions posed. Although the judgments of the minority sideremain on record, in future the constitutional position on thedecided issues in Indra Sawhney would be determined by thedecisions of the leading judgment written by J Jeevan Reddy.

Writing on behalf of the majority (6:3) in Indra Sawhney (1992)Justice Jeevan Reddy stated:

“Where a decision has stood the test of time and has never been doubted, we haverespected it---unless, there are compelling and strong reasons to depart from it. Where,however, such uniformity is not found, we have tried to answer the question onprinciple keeping in mind the scheme and goal of our Constitution and the materialplaced before us.”(Indra Sawhney: 1992)

While delivering the judgment, the SC had given the direction toestablish Backward Classes Commissions at the Centre as well asin the states to consider issues of inclusion/ exclusion from thelists of the OBCs in the Union and state OBC lists. The opinionsof this body shall generally be mandatory for the concernedgovernments. If they disagreed and rejected the recommendationsof these bodies the Court had ordained that the governmentsrecord the reasons there of. This is what has indeed happened inthe case of the Jats in the Union OBC list and which the twomember Bench of the SC rejected on 17 March, 2015.The Court had

directed the implementation of the impugned OM after framing therules for deciding the criteria for weeding out those above thecreamy layer dividing line. It had also directed that the OBClists be corrected and upgraded constantly and periodically. Ithad also mandated that future litigation on classification amongthe BCCs, creamy layer and implementation of the VP Singh OM beplaced only before the SC.

Whereas the declared objective of Indra Sawhney verdict was todelineate the law on specified issues authoritatively, ananalysis of the judgment by Neeta Verma(2005) made it clear thatat least on some of the issues it had failed to do so.Second,the judgment did contain contradictions that could cause majorconsequential damage to the BCCs.Third, a few observations of theCourt--- forming part of obiter dicta--- could well be taken asmandatory directions. Subsequent events have proved that allthese have worked to the distinct disadvantage of the BCCs.

IV

The Ruling of the Indra Sawhney onIdentification of the Backward Class of Citizensand the Doctrine of SpecificationThe Jat case decided on March 17, 2015, primarily deals with theissue of identification of the BCCs, and since it accepted one set of“evidence” put forward by the National Backward ClassesCommission and rejected another set of “evidence” put forward bythe ICSSR, by implication also the doctrine of specification. The casealso touches the issue of powers of judicial review of reservationcases which too was authoritatively decided in Indra sawhney. Itis therefore instructive to clearly indicate the benchmark set bythe authoritative judgment of the Indra Sawhney on all of thesethree points. This would enable us to apply the fidelity test onthe SC Bench that decided the present Jat case, and enable us to

conclude whether the SC benches routinely follow what IndraSawhney ordained them to stick to or have gone back to their oldwayward ways of periodically dilly dallying on the same points!

Identification of the BCCs as ordained by Indra Sawhney(1992)

The leading judgment, written by Jeevan Reddy,J, stated that theBCs contemplated in Article 16(4) were not the same as theSEBCs(socially and educationally backward classes) of Article15(4) (under which reservations are given in admissions to theeducational institutions): they were much wider group (Para:787).However, Reddy clarified that the SEBCs were undoubtedly BCswithin the meaning of article 16(4) (Para: 789). Similarly, heclarified that the SEBCs referred to in Article 15(4) were onlycategories for which Article 16(4) was enacted (Para: 787). Theaccent in Article 16(4) was on social backwardness. Social,educational, and economic backwardness were closely intertwinedin the Indian context (Paras: 787,859(b),(c). He found noobjection to validity and relevancy of the criteria adopted bythe Mandal Commission (Para: 788). He also held that it was notcorrect to say that backwardness under Article 16(4) should beboth social and educational (Para: 788).

The two concurring judgments by Pandian, J and Sawant, J alsoreaffirmed the primacy of social backwardness in theidentification of the backward class of citizens. Thus, Pandian,J held that the primary consideration in identifying BCs underArticle 16(4) was social backwardness. The degree of importanceattached to social backwardness was much more than educationalbackwardness (Paras: 116-117).Similarly, Sawant, J held that theBCs under Article 16(4) were socially backward whose educationaland economic backwardness was on account of socialbackwardness(emphasis contributed). A class that was not socially

and educationally backward though economically backward was notbackward class for the purposes of Article 16(4) (Para: 492).

The judgment also answered the question whether BCs can beidentified only and exclusively with reference to economiccriterion in the negative. Both concurring judgments of Pandianand Sawant,JJ held that the ‘means test’ was not practical(Paras:207-208).Sawant, J too provided a very convincing reason foranswering the question in the neagative.According to him,reservations under Article 16(4) was not for economic upliftment(Paras: 482,484,492: emphasis contributed ). The judgment alsopermitted identification of the BCCs under Article 16(4) on thebasis of occupation-cum-income without reference to caste (Para:800).

Cutting across the leading and dissenting judgments found noobjection to a sub-division, a majority of the judges also foundno objection to a sub-division of the BCCs(Paras: 801-803).Pandian,J even gave example of Andhra Pradesh where the BCswere sub-divided into four sub-groups(Para: 802), He felt thatthe idea was imperative to make sub-divisions( Paras: 524-525).He wanted the sub-classification to be made on the degrees ofbackwardness and not on economic criterion alone (Para: 552).

How to Identify BCCs?

One of the most contentious issues in the litigation onreservations has been identification of the BCCs by caste groups.The leading judgment ruled that a caste can be and is quite oftenwas a socially homogenous class in India. If it was a backwardclass socially, it would be backward class for the purposes ofArticle 16(4). Among the non-Hindus, there were severaloccupational groups, sects and denominations that, for historicalreasons, were socially backward. They too represented backwardsocial collectivities for purposes of Article 16(4)(Part-IV,Paras 746,779, 859(3) ).The two concurring while agreeing with

the foregoing formulation elaborated their views. Thus, Pandian,Jheld that ‘backward’ had a very wide meaning covering differenttypes of backwardness. The batteries of tests recognized by thecourts in determining the SEBCs were caste, lack of education,and also standard of education (Paras: 44-45). The SEBCs were agroup of persons having common traits or attributes coupled withretarded social, material (economic) and intellectual(educational) development (Para 58). Sawant, J held that theSEBCs referred to in the Oms were BCs under Article 16(4) andthis has been contested (Para: 433). Significantly, he held thatthe backward class of citizens whose educational and economicbackwardness was on account of their social backwardness (Para:552). According to him, the term BCCs was wider and includedSEBCs, SCs, and STs (para: 441). Backward class of citizensreferred to those classes which could not advance socially andeducationally because of taboos and handicaps created by thesociety in the past or on account of geographical or otherfactors(para: 446).

Rulings on the Doctrine of Specification

The leading judgment held that the SCs and STs were admittedlyBCs under Article 16(4)(Paras: 780-781). BCs under Article 16(4)did comprise some castes (Para: 782). These were, however, notconfined to caste among the Hindus (Para: 782). The Constitutionand the law did not prescribe the procedure or method ofidentification of the BCs.The Court left the question ofidentification to the authority (NCBC/SCBCs) to decideconveniently. All that the court prescribed was some kind ofoverriding guideline: that the survey for identification purposes mustcover the entire population (Para: 782). The survey itself can beginwith caste but one cannot wind up the process of identificationwith caste (Para 782). Identification can certainly be done withreference to castes among the Hindus and along with otheroccupational groups, classes and sections of people among other

religious denominations (Paras: 782-783). One can start withoccupational groups or with castes or with some other groups,apply the overall criteria on them and find out whether theysatisfy the criteria. Similar procedure had to be followed withother groups. The exercise of identification must cover allavailable groups, sections and classes in society (Paras: 780-785). Lingering effects test was not valid. What was important waswhether at present they were backward and inadequately represented (Para:785). Reservations under Article 16(4) was being made in favourof the caste but as a backward class. Once a caste satisfied thecriteria of backwardness, it became a BC for article 16(4) (Para:784).

The two concurring judgments of Pandian,J and Sawant,J whilegenerally supporting the leading judgment, did make significantdeparture on methodology of identification. Significantly,Sawant,J held that equality measures would have to use the sametools by which inequality was introduced and perpetuated (Para:415). Pandian,J ,similarly held that caste was a dominating /primary criterion in determining backwardness of a class ofcitizens in Hindu society but it must satisfy the primary testsof social and educational backwardness(Para: 82). He also heldthat caste was also important among other religions, and,therefore, it cannot be divested from established or agreedcriteria in ascertaining and identifying the BCs (Paras: 83-84).However, he too qualified its use not at the end point ofidentification process (Para: 108). Sawant, J elaborated anotherdimension of caste. Caste had all attributes of class and canform a separate class (Paras: 452-453). When members of an entirecaste were backward and on that account were treated as backwardclass, the expression ‘backward castes’ and ‘backward class’became synonymous (Para: 462). He emphasized the fact thatemphasis in Article 16(4) was on class of citizens and not oncitizens (Para: 435). According to him, the term ‘backward classof citizens’ in Article 16(4) has been used to accommodate non-

Hindus as well (Paras: 474,477-478). Pandian, J deprecated thetendency to criticize the Mandal Commission Report and called ituncharitable (Paras: 130-131). Critics, he felt, had nolegitimate ground to ask the Supreme Court to throw the Mandalcommission Report out(Paras: 132-139). He held that therecommendations of the Mandal Commission were supportive ofaffirmative action (Para: 140).

The doctrine of specification has evolved over the years throughevolution of case law on the subject. It comprises of three majorelements: one, based on specific and relevant data; twocomparison with the alternatives; three, scientific applicationof the mind by the relevant body to take appropriate decision.The Indra Sawhney verdict did specify that there was nothingwrong with the Index of Backwardness suggested and applied by theMandal Commission (Para: 854). Inclusion in the OBC /BCC list isnow a two-step process following the Indra Sawhney verdict:initially it is the NCBC or the SCBC of the concerned state thatprocesses the applications for inclusions /deletions. After duedeliberations that follow procedures laid down by them, thesebodies make their recommendations to the concerned government.Ordinarily, Indra Sawhney ordained that ordinarily thegovernments are mandated to accept them and include / exclude theconcerned community /group. Indra Sawhney verdict did, however,foresee the possibility where the governments disagreed with therecommendation of the NCBC /SCBC (as for example in the Jat case)and using additional data in the exercise of applying its mindscientifically came to an entirely different conclusion. It thencan reject the recommendation but it has to record these groundwhile taking such a decision. This is what happened in the Jatcase. The Indra Sawhney verdict did indicate the possibility ofuse of memoranda, reports of any committee / commission inaddition to the survey(s) that may have been conducted by / or onbehalf of the NCBC /SCBCs in deciding inclusion / exclusion.These were to be treated valid grounds for the deliberations of

the governments (Para: 855). One such case pertaining to thereservations of the Marathas in Maharashtra is already before theMumbai High Court and is likely to reach the SC in future.

As a former Member of the UP SCBC, I am aware of further stepsthat are involved in getting the benefits of the Articles 15(4)and 16(4). The designation of BCC /SEBC is for a collectivity/group of citizens but these benefits flow through the route ofFundamental Rights which have been conferred to the individualsunder the Indian Constitution. In order to obtain these benefits,the concerned candidate’s community has to be among those listedin the state and Union lists of the SEBCs /BCCs. Secondly, he/she has to obtain a certificate from the designated authority ofthe states he/ she belongs to a specific SEBC /BCC community andthat he/she is not disqualified under the currently set creamylayer rules.

Ruling on Judicial Review

Eight out of nine Members of the Indra Sawhney Bench held thatreservations were open to judicial review, and that there was noparticular or special standard of judicial scrutiny applicable tothe matters under Article 16(4)(Para: 842). However, there werecertain conditionalities attached by different judgments thatneed to be made specific. Thus, Pandian,J held that there shouldbe a periodic review by the government itself. However, thegeneral area itself was open to well set principles of judicialreview (Para: 229).He also held that formation of opinion by thestate was purely a subjective process. It cannot be challenged ina court on grounds of propriety, reasonableness and sufficiency.But for drawing requisite satisfaction, the existence ofcircumstances relevant to formation of opinion was a sine quanon.If the opinion suffered from the vice of non-application ofmind or formation on collateral grounds or beyond the scope ofthe statute, or irrelevant and extraneous material, then the

opinion was challengeable (Para: 174). This is what has beenupheld by the two judges Bench of the SC in the Jat case!

V

Performance of Higher Judiciary on thePrinciples of Stare Decisis in the Post-IndraSawhney PhaseWe may now overview some important cases dealing with variousaspects of compensatory discrimination in the post-Indra Sawhneyphase to assess whether the Indian higher judiciary, especiallythe Supreme Court itself has not gone back to its pre-IndraSawhney stance of inconsistency, uncertainty and absence ofcontinuity. These cases deal with(1) certification,(2)roster,(3)creamy layer,(4) extent of concession in eligibility toadmissions to PG /superspeciality courses in medicine, and (5)specification of beneficiaries.

Certification

Through two decisions,viz., Madhuri Patil Vs additionalCommissioner of Tribal Welfare, Maharashtra (1994) and LavitiGiri Vs Additional Commissioner of Tribal Welfare, Odisha(1995),the SC prescribed a procedure for issuance of certificates toall BC (ST,SC,OBC) categories in such a manner which mandatedelaborate verification of such applicants. This procedureprovided for a very small mechanism of verification at the apexlevel whereas the issuance of certificate itself was to behandled at the grassroots levels. Although the Court did providea time limit of six months in the issuance of certificates andlegal leeway to appear in the competitive examinations afterfiling an affidavit pending issuance of certificates, in reality,this procedure, as it has come to be enforced by a heartlessbureaucracy, has caused tremendous difficulties depriving many

legitimate candidates of the equality of opportunity sought to beensured through Articles15(4) and 16(4). Thus, in checking themenace of fake certificate, which is incidentally almost entirelyresorted by the upper castes, the Court has inflicted miseries onthe potential beneficiaries through its impractical solution.

Roster

Out of 14 issues that the Special Constitution Bench had listedfor arbitration under Indra Sawhney, one very clearly stated:

Question 6(c): While applying 50 percent rule, if any, whether a year should be taken asa unit or whether total strength of the cadre should be looked into?

The Court had then categorically ruled that the 50 percent ruleshould apply for each year.It cannot be related to total strengthof the class, category, service or cadre as the case may be(Para: 814). However, through RK Sabherwal Vs State of Punjab(1995),while making a ruling on roster of reservations invacancies, a smaller SC Bench overturned the ruling of the nineMember Special Constitution Bench saying that roster ofreservation should be applied on cadre, not on year-to-yearvacancies and that Indra Sawhney was not an authoritative rulingon roster! Whereas legal tradition and practice would make theSabherwal case ruling a legally non-enforceable decision, inpractice, it is being followed scrupulously by the upper castedominated bureaucracy much to the detriment of all the reservedcategories.

Creamy Layer

Through Ashok Kumar Vs State of Bihar(1995),a two member Benchof the SC,inter alia,ruled that economic ceiling to cut off thebackward classes for the purpose of job reservations is necessaryto benefit the needy sections of the class.The MeansTestis,therefore, imperative to skim off the affluent section ofthe backward class (Para3);that the criteria laid down by the

Government of India vide its order of 8 September 1993 was inconformity with the law laid down by the SC in the Indra Sawhneycase(Para: 10); that the states of Bihar and UP had providedmultiple conditions in all categories; that these conditions hadno nexus with the object sought to be achieved(Para:15); thatthese two states had acted wholly arbitrarily and in utterviolation of the law laid down by the SC in the Indra sawhneycase(Para:10); consequently creamy layer criteria of the twostates were struck down(Paras 15,18); and they were directed tolay fresh criteria in accordance with the law(Para:19).asindicated in a subsequent detailed analysis by H S Verma andNeeta Verma(1995) in their paper “Criteria for Identification of the CreamyLayer among the OBCs of UP and Bihar: Has the Supreme court Judgment FinallySettled the Issue? presented to the Panel on Marginalized Groups andHuman Rights of the XXII All India Sociological Conference of the IndianSociological Society, 16-18 December, 1995 at Bhopal, it appeared thatthere was some variation in what the law on creamy layer was asper majority concurring judgments in the Indra Sawhney case andwhat the Bench in the Ashok Kumar Vs State of Bihar !1995) madeit look like in its judgment. The difference was seen both in theterminology used and substantive aspects covered. The criteriafor identification fixed by the Government of India and approvedfor adoption by the states on Bihar and UP by the said judgmentclearly violate the guidelines and directions given in the IndraSawhney case and, as pointed out by RBS Verma (2005) through hischapter Creamy Layer among the OBCS: Genesis, Operationalization, and CurrentStatus (pp. 134-168 in H S Verma, The OBCs and the Ruling Classes in India,New Delhi,and Jaipur, Rawat,2005)there were severalinconsistencies in them to warrant a correction. So far, the twostates that, interestingly enough, have been ruled by the ChiefMinisters drawn from amongst the BC categories have not cared tocorrect these deficiencies.

Extent of Concessions for Eligibility in admissions to the PG/Superspeciality Courses in Medicine

In the Indra Sawhney judgment, the SC had ruled that it may notbe advisable to enforce reservation in certain posts / positions(Paras: 838-839). While deciding a PG admissions case in medicinein Bihar, the SC had further reaffirmed this position in AjayKumar Singh Vs state of Bihar (1994) indicating inter-alia,thatthe state had jurisdiction in fixing the criteria grantingconcessions in admissions to educational institutions and thatthe state had the power to administer and regulate admissions toinstitutions aided and maintained with its funds. This positionwas overturned by a Five Member Constitution Bench in Sadhna DeviVs State of UP (1997) where the Court ordained that the criteriafor admissions was to be decided by the Technical Council onMedical Education( Medical Council of India); that noreservations should be made at superspeciality levels in medicaland engineering admissions; that there should be no widedisparity in qualifying marks for general and reservedcategories be kept at the PG level in medicine and engineering;and that the MCI should examine whether to prescribe a minimumqualifying marks at the PG level. These directions should nothave emanated from judiciary since according to the Constitutionthis is an area lodged jurisdictionally with the executive!

Specification of Beneficiaries

Through a number its decisions, the higher judiciary hadindicated that population parity principle was applicable for thereservations to the SCs and STs but not to the OBCs.Specificationfor the BC categories, especially the OBCs,had been a highlycolourable political exercise and most of reservation litigationemanated from Karnataka,Andhra Pradesh, Kerala and Tamil Nadu,inparticular had focused on the criteria and methodology adopted indoing so.The contentious issue, and shifting decisions in variouscourts over a very long period, forced the Special ConstitutionBench in Indra Sawhney case to direct the Central and Stategovernments to constitute permanent mechanisms statutorily

charged,with the responsibility of recommending inclusions/exclusions from the OBC lists and governments themselvesgenerally going by their verdicts in scheduling the entries.However, in UP, a series of decisions pertaining to STs( anST,viz., Jaunsari—the residents of a cultural area including theso-called upper castes,SCs and STs simply because of the presenceof the practice of polyandry in spite of evidence being a ‘castesociety) and OBCs bypassed by the mechanism of the StateCommission for Backward Classes in listing entire erstwhileregions of Kumaon and Grahwal as OBCs and listing the Raisikhsand Jats as OBCs have flouted the test and procedures laid downby the apex court in specification under Article 14. In a bizzarejudgment in Manvendra Shah Vs State of UP (1995) an AllahabadHigh Court treated (a) the entire hill area of the erstwhilestate of UP as a separate state (even though the state ofUttaranchal itself came into existence only in 2000) and (b)limited the proportion of reservation to the OBCs to theirpopulation in different geographical sub-areas of the hillregion! Both these decisions were beyond comprehension given theconstitutional position on these issues and its finalinterpretation by the SC.

To sum up, an overview of the foregoing reveals that the higherjudiciary has gone back to its wayward ways of the pre-IndraSawhney times making light the use of the principles ofcertainty, continuity and consistency in deciding cases ondifferent aspects of compensatory discrimination in India. Thisis what Therborn (What Does the Ruling Class Do when it rules?,London, Verso, 1980) calls the games of the ruling class whenthey rule, especially periodical tactical accommodations toelements not forming part of any of the fractions of the rulingclass under compulsions and then finding safe channels for welterof contradictions amid which it exercises its rule!

VII: Where Does the Judgment in Ram Singh Caseleave the OBCs?We may now take up the judgment handed out by a two judge Benchof the SC on March 17, 2015 in the Ram Singh and Others Vs Unionof India case in the backdrop prevailing methodology ofidentification and scheduling of the OBCs by the NationalCommission for Backward Classes and its counterparts in differentstates of the Indian Union.

I have a distinct advantage over several others (like PratapBhanu Mehta, President, Centre for Policy Research, New Delhi)who have reflected on the Ram Singh judgment. I myself assembledsome clinching data dramatically depicting the exclusivity of afew upper castes and almost total exclusion of the OBCs in theservices under the state of UP at the top echelons, in highereducational institutions, in the coercive apparatus of the state(police), the bar and judiciary, and the like to highlight howuntil 1990 representation of the OBCs in the state of UP hadlargely remained a pipe dream. This data was shared with the 9Member Special Constitution Bench in Indra Sawhney.

I have the benefit of interacting with top level jurists oncompensatory discrimination and have a good grasp of theirideological moorings and cultural practices of the bar especiallyat the High Court and Supreme Court levels. Galanter onlypresented traits of the Indian judiciary in the light of decidedcases: he interacted only with the anti-reservationists. On theother hand, I represented the other side of the coin. We had tocomb, search and find jurists who would competently argue ourcase. I attended the hearings of the Indra Sawhney case in the SCwhen it was being heard before the 5 Judges and 9 Judges Benches,and I watched with horror how the judicial process wasstructured.

I saw Shyamla Pappu argue that benefits of Article 16(4) accrueonly to individuals and therefore the identification of the OBCbeneficiaries should be done on the basis of individualcharacteristics! I also have interacted and worked with at leastfour retired judges of the Allahabad High Court three of whomrose to the Bench from amongst the jurists and consequently cancomment on their legal competence and general attitude towardsthe OBCs with authority. I had the misfortune of suffering thesenior lady counsel of the Government of UP who did nothing todraft the state’s counter-affidavit in the Indra Sawhney case foras long as 6 months and when I was drafted by Mulayam Singh Yadavto help accomplish this task she mocked my foray in an exclusivenon-Aryan ,non-Brahman field. Predictably, she was later made ajudge of the Allahabad High Court!

I had been also friends with Justice Pandey, who, as DistrictJudge, Faizabad ordered opening of the locks of Ram Janmbhoomi,and who worked as the Legal Remembracer in Law and JudiciaryDepartment in the UP Secretariat and was part of a lunch group ofsenior officials of which I too was a key member. I was told thatthe then Minister of State for Home Affairs, Arun Nehru had metthe then CJ of the Allahabad High Court, and the then CJ hadsummoned Justice Pandey to Allahabad to have a chat on the issue.Pandey had visited Hanumangadhee temple and prayed before LordHanuman to give him strength to pronounce the judgment in the RamJanmbhoomi case. Pandey was used by the Congress and dumpedunceremoniously. Only the BJP government of Madhya Pradesh madehim a judge of the MP High Court! The judge’s daughterdisappeared from Lucknow Medical College in the aftermath of hisdecision to open locks of the Ram Janmbhoomi only to be tracedfrom Gorakhpur after three days.

I know that those frequenting the corridors of lower judiciaryget justice through their legal counsels who may not know the lawbut certainly know how to ‘persuade’ the executive magistracy!

However, this has assumed another form at the High Court levelsin all the High Courts of the country. You want to win a lostcase. You find out which among the available legal eagles at thebar handles the cases of His Lordship /their Lordships. He/theywould get you justice for sure! There is even this fine practiceof occasionally writing the draft of the judgment, put it in apen drive and hand it over to you know whom! I am not implyingthat this is practiced by all the judges but the very fact thatit exists in every High Court itself is revolting. I would givean illustration in which I myself figured indirectly. This was acase of an Assistant Professor from a certain University in UP.He was selected as an OBC. This was challenged in the AllahabadHigh Court on the ground that the candidate’s father was aProfessor in another University in the state. The AssistantProfessor contacted a legal practitioner at the High Court andfiled a counter-affidavit. But he was quite careless inmonitoring the journey of the case. His rival had not onlycontacted such a counsel who was chummy with their lordships butalso plotted winning over of the Assistant Professor’s counsel!The High Court asked the University to investigate the case andreport back. The University appointed a committee of which, youhave guessed correctly, given my antecedents on law onreservations and stint at the UP, SCBC ,I was made the Chairman.I summoned relevant records and found that the AssistantProfessor’s father had become a Professor after age40.Consequently, under the rules framed by the Government ofIndia for creamy layer the candidate was entitled to be an OBCbeneficiary. I wrote the Report which the University dulysubmitted to the High Court along with its affidavit. The HighCourt Bench disregarded the GOI order and quashed the appointmentof that Assistant Professor! The Assistant Professor’s appeal ispending before the Supreme Court without any interim relief andhis rival joined his post and has been working for the last sixyears!

I am familiar with the competence of the judges of the country’slargest High Court, the Allahabad High Court. I wrote thejudgment of the Sainthwar case while in the State Commission ofBackward Classes, UP. The government of UP gazetted the inclusionof the Saithwars as a sub-caste of the Kurmis. Next day theinimitable Judge, Markanday Katzu not only stayed the inclusionof Sainthwars but also a previous notification of the Governmentof UP about 22 Muslim communities which figured in the UP OBClist but were not being issued OBC certificates by thecertificate issuing authorities too! In this case, the SCBC, UPtoo was made a party to the dispute and naturally the Commissiontoo had to file its counter-affidavit before the Court of JusticeKatzu. Despite the fact that the UP Commission had two retiredHigh Court judges as its members, the task was mysteriouslyassigned to me. You know that one has to give a point by pointcounter, and I did that but I prefaced it by saying that theCourt of Justice Markanday Katzu had committed contempt of itsown court by granting a stay of 22 other communities that was notremotely connected with the case and was never prayed for even bythe petitioners! At the next hearing, Justice Katzu had to eathumble pie and vacate the stay of the unconnected 22 communitiesand eventually found the SCBC decision on the Sainthwars to bequite ‘erudite’!

I am aware of the brilliance of late Justice Krishna Iyer, but Ihave lived long enough to watch such CJIs as the one whopronounced the Bhopal Gas Compensation judgment of the SC. I havealso seen another CJI who endorsed the unconstitutional extensionof the life of Lok Sabha to a sixth year during Indira Gandhi’semergency and its decisions on right to free speech and right tolife! A learned jurist has brought out the truth how the majoritywas manufactured in the Keshvanand Bharti case that ordains nochanges to the basic structure of the Constitution that it doesnot specify! I am not going to catalogue the cases where thehighest court has pronounced bizarre judgments but I want to

state that the SC judges are not entirely unbiased and certainlynot fully competent on issues that they have given judgments on.The Ram Singh case is one such example. The two learned judges donot possess adequate research competence on the theme ofmeasuring relative backwardness of the OBCs to correctly judgethe methodologies adopted by the ICSSR study relied on by theNCBC and the Report of the Expert Committee relied on by theGovernment of India under Man Mohan Singh government andsubsequently seconded by the NDA government.

Let me pint out the defects of the ICSSR study the Ram Singh andOthers Vs Union of India verdict approved. The study onlycollected data about the Jats from the concerned states where theJats reside. The study then compared the position of the Jatswith state averages on different items forming part of the Indexof Backwardness. Thereafter, they promptly concluded that theJats were not backward. Let me give you a low down on the flawsin the methodologies of the NCBC/ State SCBCs that have been invogue since 1993. Generally, the new inclusion cases have beendecided on the basis of memoranda of the petitioners, someDistrict Gazetteers prepared during British rule and the bookswritten by British administrators through the “data” collected bythe Patwarees and chowkidars (Crocker, Russel and Hiralal, etc)supplemented occasionally by reports of another colonial relic,the Anthropological Survey of India, and of course, the memorandasubmitted by the petitioners and arguments made during theirhearings! Very rarely did they conduct / commission their own newstudies, and when they did in exceptional cases, theinterpretation of their data was quite often compromised bypressures exerted by the powers that be. I know for certain thatduring Mayawati’s last rule the SCBC, UP was bursting at seamswith 17 members but these were doing political work of the BSP inother allocated states! In any case, none of them could evendifferentiate the BCCs, SEBCs, and OBCs.They certainly knewnothing about construction of Indices of Backwardness! The other

important flaw has been not to judge the relative backwardness ofcommunities figuring in the OBC lists and those outside it andaspiring to become OBC. Mind you, Indra Sawhney had ordainedperiodic correction of the presence or absence of backwardness ofthose in the OBC list and those outside. This has never beendone. This required community /caste-wise data. One SC Benchitself rejected the pleas of a petitioner in 2014 to conductcaste census! And the Poverty Line Survey that is proceeding atsnail’s pace since 2011 is methodologically inappropriate toaccomplish this intricate task because it is not covering everysection of the society! Mind you, the decennial census collectscaste-wise data, but it is not released by the Registrar General.I have known the chilling fact that the Congress Party used thisheld back caste-wise data for its electoral arithmetic at thetime of the state and Parliamentary elections! Others, as youknow, were not entitled to it! And of course, the judiciary toocan’t view it even through the sealed envelope route!

Yes, I am not disagreeing with the outcome of the Ram Singhverdict. As a Member of the SCBC, UP we too had found no merit inlisting the Jats in the OBC list without a detailed study. Thetwo judges in the Ram Singh case have rightly emphasized theimportance of contemporary backwardness and the need to also takeup the cases of occupational categories / TGs etc in listing ofthe OBCs The Ram Singh judgment is only a reminder to the rulingclass to have a re-look at the pending issues of the OBCs onpositive discrimination with which I wrote this series. I quotedGoran Therborn on how the ruling classes periodically negotiateterms with sections of the society that don’t form part of any ofthe fractions of the ruling class. I myself find that quite a fewcastes in the OBC lists have become not only part of the regionalruling class in different states but are quite dominant there andimportantly influence the exercise of political power at thethrone in New Delhi. I can give examples of the Vokkaliggas and

Lingayats from Karnataka, the Marathas from Maharashtra, the Jatsin Rajasthan, Haryana and western UP,and the Sikh Jats in Punjab.

There is petition of a certain Shukla that has been pendingbefore the SC for a very long time in which he has stated thatonly two-three communities--- Meenas among the STs and theChamars among the SCs---- are cornering more than 90 percent ofreservation seats of the SC and STs, and that the remainingcommunities in these two lists are waiting for their turn for thelast 67 years. The SC found time for that deviant cricket tycoonSrinivasan repeatedly but has failed to take up this vital writto date. I am quite certain that in a state like UP the Yadavshave been getting more than 70 percent seats in services underthe state for the last three years! They need to be thrown out ofthe OBC list.

The ruling classes are not listening to the foregoing to the woesof the OBCs!

(Posted on the Face Book on 23-29 March,2015)