A pathbreaking judgement

By Sushil Kumar Jain

The 27 per cent quota for Other Backward Castes (OBCs) in centrally-funded educational institutions has been upheld by a Constitution Bench of the Supreme Court after excluding the creamy layer. However, confusion remains over whether quotas would apply to postgraduate courses, such as those at IIMs and IITs. The anti-quota side interpreted the judgement as a "no", but the government has decided to seek clarifications from the court on the matter.

The five-member Bench delivered four judgments. One judgment, by Justice Dalveer Bhandari, says, "Once a candidate graduates from a university, the said candidate is educationally forward and is ineligible for special benefits…for postgraduate and any further studies thereafter." This view, however, is not endorsed by Chief Justice K.G. Balakrishnan in his judgment. The third judgment by Justices Arijit Pasayat and C.K. Thakker says graduation should be used as a criterion to judge the backwardness or otherwise of a community.

The court’s consent for rolling out quota was given after a nine-judge bench of the Supreme Court, 16-years ago, ruled in favour of OBC job reservations in the Indira Sawhney case in 1992. In this context, the OBC quota in higher education is only a natural extension of the principle.

The ‘social justice’ parties that have been complaining that not enough was being done will come out with all guns blazing. The Opposition will also use the issue to ram in its point that the government did not make a sincere effort on the quota front. All this could not have come at a more inopportune time for the Congress as it is in the midst of preparing for election in Karnataka. The quota debate will be a distraction for the party as it will have to concentrate on cooling tempers within the alliance over the quota judgment.

For those politicians who had built their entire careers by practising backward politics, the apex court judgement denying creamy layer among OBCs the benefits of reservation in higher educational institutions has come as a jolt.

The ruling on the principle of creamy layer, which had remained unimplemented so far because of stiff resistance from the quota brigade, made a strong pitch for excluding the well-off among these sections. More important, it has raised serious questions about the kind of politics practised by quota enthusiasts so far. While recognisable OBC faces in the country’s political circuit, including leaders such as Lalu Prasad Yadav, Mulayam Singh Yadav and S. Ramadoss may lose out, a large section is bound to benefit.

"By excluding those who have already attained economic well being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary, resulting in reserve discrimination," the Bench observed.

That the fruits of quota have so far been enjoyed primarily by dominant backward castes such as Yadavs, Kurmis, Mauryas, Lodhs, Vanniyars, Idigas and sections of Vaishyas, leaving out Middle Backward Classes (MBCs). This has over the years created a deep resentment among the latter category, who have seen no change in the socio-economic or educational status. In states such as Bihar, they have emerged as a powerful block and given vent to their ire by voting against RJD, which had projected itself as a powerful champion of Backward Class empowerment, but failed to satisfy aspirations of MBCs.

If the creamy layer principle is not applied, it could easily be said that all the castes that have been included among socially and educationally backward classes (SEBC) have been included exclusively on the basis of caste. Identification of SEBC for the purpose of either Article 15(4), 15(5) or 16(4) solely on the basis of caste is expressly prohibited by various decisions of the Supreme Court and it is also against Article 15(1) and Article 16(1) of the Constitution.

The point is not that affirmative action in higher education be junked. Rather, that the system of caste-based quotas, which has become divisive and self-defeating, be replaced by a more transparent and effective mechanism. Some experts have suggested replacing the prevailing system of fixed caste quotas with a mechanism that would award booster points for different orders (social, cultural, regional, linguistic, and economic) of backwardness while evaluating on merit candidates seeking admission to higher education institutions. This would give truly deprived members of intermediate castes a head-start over their more empowered competitors without dividing society.

Empirical evidence proves that middle castes have not been as historically hamstrung by extra-economic biases such as untouchability and cultural ostracism as SC/STs. That said, real empowerment can be achieved only by breaking the traditional caste-occupation correlation. That would re-invent and canonise traditional skills as modern knowledge even as the economy undergoes rapid structural diversification to include those skills in the formal sector and ascribe proper value to them.

The court expressed concern at the disturbing trend of more and more communities queuing up to assert their status as backward classes to get the benefit of reservation. "Nowhere in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere else in the world is there a competition to assert backwardness," said the court while justifying the concept of the creamy layer evolved in the Mandal case to keep out the better-off section of OBCs from the purview of reservation in jobs.

The OBCs, whose aspirations had been raised by the UPA government’s decision to extend the quota net to higher educational institutions, had been left high-and-dry after the latest judgment. They were, according to the thinking in the saffron outfit, cut up with the Congress in particular for authoring the project without any proper homework.

Some have proposed the inclusion of economic criteria: this is something of an improvement, but does not go far enough. What we needed, was space to design more effective mechanisms of targeting groups that need to be targeted for affirmative action. For instance, there are a couple of well designed deprivation indices that do a much better job of targeting the relevant social deprivations and picking out merit. The government’s action is disappointing because it prematurely foreclosed these possibilities. In foreclosing these possibilities the government has revealed that it cares about tokenism more than social justice. It has sent the signal that there is no room for thinking about social justice in a new paradigm. INAV

Iraq fires refuse to die down

By Anirudh Prakash

The Pentagon on the basis of intelligence gathered by the CIA has reported to the US President, Mr. George W. Bush, that the United States lost the war in Iraq. If American commanding officers of general rank, once they go into retirement, say the Iraq war is lost or if the vast majority of the American people say it is not worth fighting, does that mean the USA has lost? When someone loses someone else wins-there are no "draws" or runners-up in war. If America has lost, does that mean Saddam won? How can a man who was hanged in sight of the whole world win a war from beyond his grave? It is all very strange in this most abominable of all wars.

In the Battle of Borodino in 1812, the Russians under Marshall Mikhail Kutusov withdrew and the French held the field of battle at end of day-the single bloodiest day of warfare in modern times with between 66,500 and 125,000 casualties including several dozen generals. Though the French won, it signalled the end of French power and fall of Napoleon. Borodino was a Pyrrhic victory.

Marshall Kutusov, against his generals’ advice, and courting extreme unpopularity with St. Petersburg, continued to withdraw after Borodino and declined to give battle to defend Moscow itself. His remaining forces and most of the civilian population withdrew beyond Moscow. The city was emptied and allowed to burn. The French took it without a fight, Napoleon entered and tried to feel himself its ruler, his generals tried to create a cooperative local government from among the remaining residents.

Kutusov waited, waited and waited some more without giving battle. Then one day, some months later, just as Kutusov had been praying, news came that Napoleon and the French had gotten up and left. Napoleon’s retreat was the biggest catastrophe his Grande Armee suffered, and they were harassed by Russian attacks all the way to the border.

Saddam was reported to have had two Russian generals advising his army, who quietly left before the Anglo-American attack occurred. Russian generals learn about Kutusov on mother’s knee. Even Stalin invoked Kutusov’s name when his 1939 pact with Hitler had failed and Hitler attacked Russia on 22 June 1941. Iraq had both Nazi and Soviet influences.

Saddam’s propaganda spokesmen in the early stages of the March 2003 invasion alluded to a Kutusov-like defensive doctrine: "the US and British administrations have depended on their strategy and planning based on the information obtained from the traitors, whom they call opposition, and from some intelligence services of some Arab countries… They said: "Let some missiles be fired for the maximum of three days and then everything would be over." Therefore, we find them in a state of confusion. They prevent the media from having access to the facts about the military operations under security pretexts. They say that they are heading towards Baghdad and that they covered more than 160 or 180 km towards Baghdad. I would like to tell them, that in the course that they are following, let them continue up to 300 km and let them mobilise all the tanks and marines they have, and we will not clash with them soon. We will give them enough time. However, in any contact with any Iraqi village or city, they will find what they are now witnessing in Umm Qasr and Suq al-Shuyukh." Iraq’s Army did a vanishing act, men and materials disappeared, Baghdad fell without fighting.

What we may have been witnessing ever since the Bush/Blair attack on Iraq is the outcome of a clash between the doctrines of Clausewitz on the American side and Kutusov on the Iraqi/Russian side.

American forces began with "Shock and Awe", followed by disbanding Iraq’s Army and banning the Baathists. Then came "Light Footprint" or "War Tourism", where American forces left their bases only for specific jaunts outside, while attempting to create a new "Iraqi" Army in an American image. Recently, the purported strategy has changed again to "Clear, Hold, Build" requiring the current infantry "surge" of 30,000 extra troops to try to pacify specific Baghdad neighbourhoods and then "build" political institutions.

Thirty years ago, Professor W.B. Gallie pointed to the contradiction Clausewitz had been unable to reconcile: "All commentators are agreed that Clausewitz’s greatest difficulty was to explain the relationship between (Absolute War and War as a Political Instrument)", Philosophers of peace and war, Cambridge University Press 1978. War-making as destruction and war-making as politics are incompatible. The cruelties of Iraq may explain and demonstrate the root of this contradiction most clearly: defeated, disarmed and destroyed victims of an Absolute War are hardly going to feel themselves agreeable to then being manipulated into any political institutions or agreements designed by the perpetrators of the violence. You cannot declare "Absolute War" on Fallujah, kill or arrest every able-bodied male citizen there, and then expect Fallujah’s women, children and old people to participate happily in town hall meetings you wish them to hold. "America has lost because it has not behaved like a great nation", said one ordinary Iraqi initially in favour of Saddam’s overthrow. America’s retired generals are saying Iraq has been America’s greatest strategic defeat.

The result of the clash between the two doctrines of war has been 30,000 American casualties (dead and wounded at about 1:8), while Iraqi dead exceed 650,000 with millions more wounded, rendered homeless or made refugees. Future historians may speak of a genocide having occurred in Iraq.

Did Saddam win if the Americans have lost? Of course not. Iraq had its Mir Jafars, and Saddam was at most a Shiraj, not even that given his odious past. Iraq now has its Tippus, Bhagat Singhs and Khudi Rams as well.

"The Resistance is the natural reaction to any occupation. All occupations in history faced a resistance. Occupation is no for developing people and making them better. It is for humiliating people, and chaining them and taking their freedom and fortunes away. These are my convictions which make me feel that this occupation is an insult to me and my people." Such was what an anonymous Resistance officer told the Australian journalist Michael Ware. INAV