SC locks govt's options on creamy layer

NEW DELHI: The Supreme Court's ruling on OBC quota in centrally-aided educational institutions seems to have left the Manmohan Singh government with few options over challenging the verdict's key elements ��� exclusion of the creamy layer and the view that quotas will not apply to post-graduate courses.
As a more considered reading of the SC ruling began to sink in, it is becoming apparent in government circles that the quota boundaries drawn by the apex court cannot be easily reworked.Apart from Congress's political calculations and the will to take on the judiciary, legal and constitutional hurdles appear quite daunting.
Senior government sources, well-versed with the judgment, said that the issue had not been discussed at Friday's Cabinet meeting, but was likely to crop up some time soon.
While the prime minister observed that the government was yet to go through the judgment delivered by the five-judge Bench in detail, it was becoming clear that parts of the verdict were quite immutable. On the most contentious creamy layer issue, the ruling that inclusion of "elite backwards" would go against the "basic structure" of the Constitution could lock out the option of a constitutional amendment.
It will never be easy for the government to drum up a two-thirds majority in Lok Sabha needed for such an amendment, but even if it does, a legal challenge before the SC is bound to follow.
On the controversy over graduation being regarded as a measure of being "educationally forward", sources said that a reading of the verdicts seemed to support such an interpretation. While the HRD ministry had asserted that this was not so and that IIMs, which offer only PG courses, will have quotas, this was bound to be challenged in view of the SC ruling.
The "no-quotas-in-PG-courses" is by far the most controversial part of the SC order. There is a view that this does not reflect the majority opinion of the Bench, but the sources maintained that government will not find it easy to ignore what Justice Dalveer Bhandari and Justices Arijit Pasayat and C K Thakkar have said.
Justices Pasayat and Thakkar have noted that no person, class or religion can be higher than the nation and that therefore "...the best and meritorious students must be selected for admission to technical institues and medical colleges".
When this is read with the even more explicit view of Justice Bhandari that "once a candidate graduates from an university, the candidate is educationally forward and ineligible for special benefits under Article 15(5) of the Constitution for post-graduate and any further studies thereafter", government will find it a tall order to argue that the PG bar is not binding.
Pointing out that the judgment had tied the government's hands on several fronts, sources said that the merit principle had been only marginally diluted for admission criteria. The five grace marks suggested by Justices Pasayat and Thakkar or 10 as per Justice Bhandari, made it clear that OBC candidates will still have to pass tough screening tests of top schools like IITs, AIIMS and IIMs.
In comparison, the admission cut-offs for SC and ST students in university are much lower. Clarifications will be sought from the apex court which may be asked to address the apparent anomaly of a graduate seeking employment under an OBC quota while being debarred from accessing reservations in PG and doctoral studies. These points could be raised if pressure from allies leads government to file a review petition.
There is also concern that the OBC lists could be subject to periodic review and that institutions currently excluded from quota like scientific establishments are not "frozen". This, along with a suggestion in the rulings that a section of a community can be designated "backward" for being economically disadvantaged could open the doors to quota mayhem. Left to its own instincts, the government would not be keen to challenge any substantial part of the rulings. Congress circles are fairly relieved that SC has served a fait accompli with regard to the creamy layer. Inclusion of OBC elite among quota beneficiaries can deepen the resentment of middle classes.
As yet powerful OBC leaders like RJD's Lalu Prasad have not raised the ante, seemingly prepared to view the SC green signal to the 27% quota on the whole in positive light. But as the government weighs its choices, it is realising the SC has locked the quota box and thrown the key away.