What have data got to do with it?

Those who’ve opposed the government’s decision to impose quotas for OBCs in higher education are obviously ecstatic over the manner in which the Supreme Court (SC) has slammed the government. The Court wanted to know how the government came up with a 27 per cent reservation figure when it didn’t even know how many OBCs there were in the country, or whether they’d even been discriminated against in higher education and/or jobs. It wanted to know why the government had decided not to exclude the “creamy layer” OBCs from reservations since they would take away the cream, so to speak, of these reservations.

All these questions, and more, have been dealt with by this newspaper over the past few months, and the answers are unequivocal. OBCs constitute about 36 per cent of the country’s population, not 52 per cent as reported by the Mandal Commission. There is also no evidence of the OBCs being discriminated against. While their share in higher education is lower than their share in population, it is commensurate with their share in those passing high school, which is the correct figure to look at. If the OBC share in top jobs is lower than their share in the population, and indeed this is the case, it is only because the share of OBCs in the country’s college-pass population is low.

Similarly, there is not too much of a difference in the years of schooling across various castes in different income groups—a poor OBC has virtually the same number of years of schooling as a poor upper-caste Hindu. The difference in education years, however, is quite stark across income groups—that is, a rich OBC has many times more years of education than a poor one. Several of these articles/stories can be found at http://thesuniljain.blogspot.com/2005/01/affirmative-action.html . To that extent, the Supreme Court’s questions are valid ones.

That said, there are a few problems with the Supreme Court’s stand on the matter. For one, the 27 per cent figure clearly comes from the Supreme Court’s own ruling in the famous Indra Sawhney case, where the Court capped the reservation at 50 per cent—subtract the SC/ST reservation from this, and you get the 27 per cent figure! The point is that the Court never gave any justification for the 50 per cent figure either; it was a purely arbitrary number. And much the same issues that have cropped up in the case of the OBCs crop up in the case of the SC/STs as well—it is the low proportion of SC/STs in schools that explains their low share in college and their consequent low share in top jobs. So how come the Court has not asked for data on this?

Of course, the larger problem (from the politicians’ point of view) with the Court’s arguments is what this could mean for the future of lawmaking as we know it. After all, if legislators are asked to back each piece of legislation with facts, a large number will simply not happen. To take the most recent case of special economic zones, when the finance ministry has quantified the huge tax losses that will result once this happens, how could the government pass an SEZ Act?

Or take the National Rural Employment Guarantee Act, which was enacted to provide employment to the poor for 100 days a year. Well, as Surjit Bhalla has documented (http://www.oxusresearch.com/downloads/cep111204.PDF ), the poorest in rural areas have an unemployment rate of just 1.3 per cent and they work around 5.5 days a week—that is, if they are to use the NREGA, they will do so by giving up work elsewhere!

The renewed emphasis on throwing good money after social sector programmes such as the Sarva Shiksha Abhiyan is another good example of a law that wouldn’t get past the drawing board if data were to be asked for first. The Pratham Survey makes it clear just how poorly public money is being used, given that almost two-thirds of children in government primary schools cannot read a simple story and half of them cannot solve simple numerical problems.

None of this, however, should make anyone in government nervous since the Supreme Court can say whatever it wants, but the country’s politicians will still have their way. You just have to read Arun Shourie’s Falling over Backwards to know this. On each occasion when the courts questioned the legislators, they amended the Constitution! Justice Kuldip Singh, for instance, said Mandal’s “so-called ‘socio-educational field survey’ was an eye-wash” and that the report was “constitutionally invalid and cannot be acted upon”. But it is being acted upon.

In another case, when the Supreme Court said it was illegal [under Article 29(2)] to deny someone admission while an SC student who had fared worse was given admission, the Constitution was amended and a new clause added to Article 15 which allowed the state to take measures to help the advancement of any socially or educationally backward class or for SC/STs! In the famous Indra Sawhney case, when the Court said the 69 per cent reservation was illegal, the Tamil Nadu Assembly unanimously passed a resolution asking the Centre to amend the Constitution and in 1994, this was done! Shakespeare would have described the Court’s efforts as words full of sound and fury, signifying nothing.