People do not celebrate or enjoy backwardness. They suffer it and face discrimination, insult and humiliation because of it. Mocking at their aspirations to overcome backwardness betrays casteist prejudice.

The above are the ending lines of Praful Bidwai’s article in the Frontline titled “tilting the balance”. In the article he makes a remark to the extent that the Supreme Court’s decision in Ashok Kumar Thakur is another of those instances where the judiciary seeks to undo the measures for equality proposed by the Government. Considering the amount of heat that the issue of reservations has created, it was expected for the Court to take a stand on this issue.

In Ashok Kumar Thakur, the Supreme Court stayed the government order calling for an increase in the quotas for Other Backward Classes (OBCs) in educational institutions. The Courts decision is based upon Indian precedents like Vasanth Kumar v. State of Karnataka, Indira Sawhney and the US decisions of Grutter v. Bollinger and California v. Allan Bakke. In both these US decisions the Court said that that affirmative action, in particular in the admission process in universities, must be “narrowly tailored” to promote diversity, but not in such ways as would discriminate against those excluded from affirmative action because they do not belong to ethnic or racial minorities.
The attitude of the Court in the decision is something to ponder about. I am remimded of Clarence Darrow saying in henry Sweet, that the law makes everyone an equal, but the society does otherwise. Inarguably, in Ashok Thakur, the Court has done otherwise. The fact that even after 60 years of independence we have not been able to achieve our goal of a classless society shows how mindless we Indians have been. When referring to the Mandal Commission in this case, the Court refuse to recognise the findings of the Commission statting that it was based on the 1931 census which is too old to consider. The formulation of an objective criteriion for determing caste backwardness and an OBC was stressed upon.
Other than concurring with Indira Sawhney, the Court has stressed upon Vasanth Kumar, where there was a clash in the status of lingayats and vookaligas. OP Chinappa Reddy in the judgment stated that the issue was nothing but a quarrel between the castes to get the benefit of reservation. He also stated that nowhere else in the world is there competition to assert backwardness and to claim ‘we are more backward than you’. Reservation then according to the Court in the case, had become a war among different backward classes.
There then also is an issue of separation of powers. The Government order no doubt is a part of the directive principles of a social order under Article 39 and the goal of a casteless society. Can then such order be challenged on the mere denial of a possiblity of opportunity in an educational instutution? In fact, the truth is, the Supreme Court in our Country has off late tried to involve itself in many executive decisions. Be it the delhi ceiling case or on reservations. A problem occurs when it tries to solve a socio-political debate in a legal manner. Annoucing a stay on the order has now resulted in many institutions with holding their seats till the decision is final. The IIM’s are growing impatient. Arjun Singh is in the crow’s nest and the Congress has no clue of what to do. A court’s decision is suppose to solve an issue, not create so many complications.

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