The Indian Supreme Court has struck a blow for affirmative action (AA) in favour of the socially disadvantaged through its judgment on reservations of 27 percent of admissions in Central institutions of higher education for the Other Backward Classes (OBCs), or lower and middle social strata. The landmark judgment upholds a special (93rd) Amendment to the Constitution under which the Central Educational Institutions (Reservations in Admissions) Act 2006 (CEI Act) was passed. This allows the government to institute OBC quotas in Central universities, elite technology and management schools, and other institutions. The Supreme Court accepted caste as the fundamental, but not the sole, criterion to determine backwardness. In doing so, it recognised caste as the central axis around which discrimination occurs in Indian society, and called for remedial action. In keeping with Article 30 of the Constitution, it exempted religious-minority institutions from quotas The 5-member Bench delivered four separate judgments. But there's no ambiguity about the verdict's basic thrust, which is against discrimination, and for equal opportunity. The only contention by the petitioners it accepted is that the so-called 'creamy layer', or relatively affluent or educated sub-group, among the OBCs be excluded from quotas. The Court has resoundingly reaffirmed the Constitutional value of inclusion and facilitated the entry of OBCs in institutions of higher learning-and thereby, the professions, in which they're badly underrepresented. The verdict sets out a clear norm for the future direction of society-because it rejects the idea of equality as the equal treatment of groups who are unequally situated and have unequal access to opportunity. Instead, it recognises that there are entrenched inequalities in society, based on birth, which produce and reproduce inequalities of status and life-chances at all levels-a situation of cascading iniquities. OBC reservations will facilitate the equality of results/outcomes and make for a society based on caring and sharing. The upper castes are loath to lose privilege. They resented the CEI Act although it provided for a 54 per cent increase in the capacity of educational institutions and thus preserved their access. But the 'twice-born' wanted to corner the additional capacity too. The petitioners sanctimoniously cited the misery of out-of-school children, the necessity of universal elementary education, and above all, merit. The implicit assumption is that the low castes don't deserve higher education; they must be satisfied with primary schooling and the menial or clerical jobs this can yield. Society has no obligation to open up new opportunities. This violates the principle of inclusion. The petitioners also argued that caste can't be a criterion of backwardness because the Constitution mandates the creation of a casteless, classless society. The Constitution does outlaw untouchability, and seek to abolish caste-based discrimination. Yet, caste cannot be abolished by legal fiat, but only through social reform. What the law can do is bring disadvantaged groups to the forefront of civil life However, as Chief Justice K. Balakrishnan clarified in his judgment, the identification of Backward Classes 'is not done solely based on caste. Other parameters are followed too, including poverty, social backwardness, economic backwardness'. The judges were even more forceful in rejecting the petitioners' argument that the CEI Act was intended to be a 'vote-catching mechanism. ' The main dissenting judgment was delivered by Justice Dalveer Bhandari, who ruled that an OBC would cease to be backward when s/he graduates, and the 93rd Amendment would become invalid if extended to private institutions. His verdict is at a tangent. The others maintained silence on quotas in private institutions, which weren't specifically challenged. Logically, under the 93rd Amendment, reservations should be extended to private educational institutions too. It's here that 80 per cent of all seats in the engineering and medical courses are located. That's where seats are sold to the relatively affluent for 'capitation fees' and donations. And that's where the struggle for a fair distribution of national resources lies. The government apparently wants to do this in phases, and must be strongly supported. If there's a legal challenge to such extension, it must be resoundingly defeated. The judgment should help raise the level of debate on 'merit' in hierarchical societies. The merit argument is especially suspect in societies which allow inheritance of private property, and privilege related to birth, which largely determine one's social position. Inheritance means that the affluent are at a vastly higher starting-point in relation to the disadvantaged. Merit makes sense only when it measures the distance between the starting-point and the end-point. Most upper-caste people enjoy unfair advantage over OBCs primarily because of their starting-point. The single 'objective test' usually employed in competitive exams is a disputable criterion of merit. One's score in it often depends upon familiarity with the type of questions asked and time management, not comprehension. Merit can only have a limited place in a public-oriented policy of recruitment. Gender, ethnic-regional balance, and diversity are also relevant. A person born in a highly educated upper-caste family will have a totally different universe of knowledge, social contacts and elite acceptability-and information about availability of study courses, colleges, tutorial institutions, career options, etc. S/he can always call ÒUncleÓ so-and-so in the professions for tips. Typically, such advantage outweighs even differences of wealth/income. Past discrimination produces inequality of opportunity even when there's no discrimination or exclusion at present. The critical question is how to level the playing field. Affirmative action is the solution. It includes voluntary targets for recruitment of disadvantaged groups, special counselling and training, non-quantitative diversity promotion, etc. Reservations, admittedly, are a rather blunt instrument, but politically almost the only one available in India. The quota verdict vindicates the UPA government's promise of social inclusion. It should also draw major lessons from it. The CEI Act was part of an initiative to defy the pressure of market forces and 'normal' processes of social discrimination, and put politics in command. This is of a piece with its other progressive measures like the National Rural Employment Guarantee Act, which too bypass ÒnormalÓ processes to promote democratic inclusion. The UPA should take forward the politics-in-command agenda.

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Praful Bidwai, a fellow of the Transnational Institute, is a senior Indian journalist, political activist and widely published commentator. He is a co-author (with Achin Vanaik) of New Nukes: India, Pakistan and Global Nuclear Disarmament.