OBC quotas and the 'creamy layer'

The SC judgement on OBC quotas is in. The focus now turns to implementation. There are two issues as I see it:

i. How do we define the 'creamy layer' for education purposes;

ii. Whether the 27% quota is to be introduced at one go or in phases as the Moily committee had recommended.

On the latter, I just saw on TV that Ramadoss wishes to have 27% at AIIMS right away. I have favoured phased implementation not just because it is politically more acceptable ( to those adversely impacted) but also because we are not clear as to how OBC representation in educational institutions will be impacted by the 27% quota. Let me, therefore, focus on (i) above.

I have not had a chance to go through the judgements myself. From what I could make out from newspaper reports, the 27% quota is subjected to several constraints:

• 'Creamy layer' to be excluded. For jobs, the definition was those from families with income of Rs 2.5 lakh per annum. It appears that, on top of this, the present judgements impose several other criteria: children of those occupying certain high posts or belonging to certain vocations, graduates, etc. Whether these are mandatory or indicative is not clear. On TV yesterday, I heard several people say that each state has evolved its criteria for determining the 'creamy layer'. It is upto the HRD ministry, I suppose, to clarify what criterai would apply to central educational institutions.
• Private unaided institutions are not covered by the existing legislation. On whether fresh legislation can be framed to cover them, all judges except Justice Bhandari are reported to be silent. Justice Bhandari is said to have taken the position that private, unaided instiutions fall outside the ambit of the 93rd constitutional amendment.
• Graduates do not qualify as backward, hence there will be no OBC quota in post-graduate courses. This is one issue that needs to be resolved quickly because we have to determined whether quotas apply to the likes of IIMs or not.
• There is to be a review of the quota level after five years. Again, whether this is merely a suggestion or a direction needs to be clarified.
• The OBC quotas will be subject to minimum eligibility criteria. According to some reports, the difference between the eligibility cut off for the general pool and for the OBC quota should not exceed 5 marks (some say 5%). What this means for IIMs which follow the percentile system is not clear- is the OBC cut off 5 percentile below the normal one or 5 marks below the normal one. My guess is that the latter would be much lower than the former. The Moily committee itself had a sentence to the effect that quotas should not be at the cost of institutional quality- this meant that institutions could exercise their discretion in judging how far they should go to accommodate OBCs.

On the face of it, it would appear that the constraints imposed by the SC will result in a representation for OBCs below the 27% intended. On TV yesterday, I heard dalit activist and scholar, Kancha Iliah, say that the combination of 'creamy layer' and higher fees at educational institutions would prove lethal to the cause of OBC quotas- those with incomes below Rs 2.5 lakh would be sufficiently intimidated by the increasing levels of fees not to seek admission; those could afford the fee would be ineligible. The 27% quota would remain a dream.

Iliah argued that the additional seats being created for OBC quotas would end up being appropriated by the higher castes ( the SC judgement apparently says that seats not filled by qualifying OBCs must go the general pool). Thus, OBC quotas would have the perverse effect of giving greater representation to the higher castes than they enjoy at present!

How plausible is this scenario? Health minister Ramadoss (who was on the same show on Times Now) made the point that 17 years after the implementation of Mandal I, OBC representation in government was just around 5%. If the same happens with educational institutions, I guess the upper castes would be richer by 22%!

However, I am not sure we can extrapolate from the experience with government jobs. People have cited some surveys done in educational institutions (where quotas do not exist at present) that show that OBC representation is quite high even now- on the TV show yesterday, somebody mentioned a figure of 24%. It may well be that OBCs who graduate from good institutions do not seek government jobs, hence the representation in education does not translate into commensurate representation in government.

Iliah may be right: outside the 'creamy layer', not enough people may qualify to meet the quota of 27%. But he overlooks one fact: 'creamy layer' OBCs may be getting in without any concessions, on pure merit, that is. The objective should be overall OBC representation of 27%, not 27% through quota plus whatever OBCs get in the general category. This translates into a higher than mandated representation for OBCs in many states such as Tamil Nadu and is the cause of much of the anti-reservation sentiment.

So we need to monitor OBC representation in the general pool and that in the quota pool and see whether the total approaches 27% or not. This is why phased implementation is desirable. Start with 7% or 10% in the first year for quotas and see what the total OBC representation, including that in the general pool, is. Adjust the definition of 'creamy layer' accordingly.This gives us an empirical basis for defining the 'creamy layer'. It will be so defined as to ensure that OBC representation in the general pool plus that in the quota category amounts to 27%. It also gives us a basis for setting cut-off levels of marks for quotas.