The Supreme Court verdict on Jat reservation laid down an entirely new framework for determination of who is backward, while also suggesting a periodic revision of the OBC list for necessary inclusion and exclusion of the classes.
The bench of Justices Ranjan Gogoi and Rohinton F Nariman overruled a decision what has always been considered within the exclusive domain of the government, and proposed fresh yardsticks.
The Indian Express breaks down the verdict into issues it addressed and ruled upon:
* ‘Historical injustice’ cannot form a basis for perpetual OBC status: The court made it clear that only because a community was backward in the past and it was accorded an OBC status, it cannot be considered backward forever. Reminding the National Commission for Backward Classes (NCBC) of its obligation to conduct periodic surveys, the court held that the duty of the State was to “to reach out to the most deserving” class and those who are socially backward in present times.
“An affirmative action policy that keeps in mind only historical injustice would certainly result in As per the bench, a decision on granting OBC status was “grave and important” since it impacted the rights of many under Articles 14 (equality) and 16 (equality of opportunity in matters of public employment). Such decisions, it noted, must be taken on the basis of contemporaneous inputs and not outdated data. It pointed out that under the NCBC Act, revision of the Central Lists for OBC is contemplated every 10 years.
* Perception of ‘less fortunate’ cannot be a ground: The bench was categorical in holding that the perception of a “self-proclaimed socially backward class” of citizens or even the perception of “advanced classes” as to the social status of the “less fortunate” cannot continue to be a constitutionally permissible yardstick for determination of backwardness. It said the “social groups which would be most deserving must necessarily be a matter of continuous evolution”, and it was the duty of the State to discover such groups “rather than to enable groups of citizens to recover “lost ground” in claiming preference and benefits on the basis of historical prejudice.”
* Caste is a significant factor but can never be the sole reason for OBC status: The court said backwardness could not be read into a caste as a whole and that it is a social class and not a caste which has to be identified for ascertaining backwardness. The bench acknowledged that owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. “Although caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this court has been routinely discouraging the identification of a group as backward solely on the basis of caste,” it said.
* Based on social backwardness, identify and discover new groups that deserve reservation: Holding that any wrong inclusion in the OBC category was nothing short of being unconstitutional, the bench said social backwardness has to be the prime consideration for granting OBC status. “Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action,” it said. The court said its verdict on the recognition of the third gender as a socially and educationally backward class, was a reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness.
* Not only inclusion but exclusion of classes from OBC list is also envisaged: The bench emphasised that outdated statistics cannot provide accurate parameters for measuring backwardness for the purpose of inclusion in the OBC list since reliance on old date would mean lack of development of these communities in spite of passage of time. “One may legitimately presume progressive advancement of all citizens on every front, that is, social, economic and education. Any other view would amount to retrograde governance,” it said.
The bench maintained that the percentage of the OBC population estimated at “not less than 52%” in the 1992 Indra Sawhney case certainly must have gone up considerably, for over the past two decades there has been only inclusions in the Central as well as State OBC Lists and hardly any exclusion therefrom. “This is certainly not what has been envisaged in our constitutional scheme,” it ruled.
