T.T. Ram Mohan (IIM-A professor who blogs here) has a column in the Economic Times on the Supreme Court verdict on OBC reservation. He dwells a bit on how the judges answer objections raised by quota opponents:
... One [argument] is that ... quotas violate the right to equality enshrined in the Constitution and hence undermine the basic structure of the Constitution.
This roughly translates into the most common argument against quotas, namely, that ‘merit’ or marks obtained alone should be the basis for admission to educational institutions. If a person from a backward class gains admission even though he has lower marks than another individual, we are not treating the two equally.
Yes, says the SC, there is the right to equality but the basic structure of the Constitution is violated only when any right is abrogated, not when that right is amended or altered. As Chief Justice Balakrishnan puts it, “the principles of equality cannot be completely taken away”. However, the “facets of the principle of equality could always be altered especially to carry out the Directive Principles of the State Policy envisaged in Part IV of the Constitution.” In other words, it is legitimate to place some limitation on the right to equality in order to pursue a larger social purpose.
The 93rd Amendment was also challenged on the ground that quotas cannot be caste-based: we cannot equate “backward classes” with “backward castes”. This again is an argument often heard in popular discourse. Those who oppose quotas for SEBCs say they are all for affirmative action in favour of the economically weak. But they are opposed to caste-based quotas because well-off groups or individuals — the ‘creamy layer’— tend to walk away with the benefits.
The Supreme Court judgement addresses this argument squarely. Caste cannot be the sole criterion for determining backwardness. But it is certainly one indicator of backwardness. As long as caste is used along with other criteria for determining backwardness, it cannot be said to be violative of the Constitution. Identification of SEBCs today, the Supreme Court ruled, is indeed based on multiple criteria, hence it is valid.
On the "creamy layer" issue, Ram Mohan points to practical issues that need some attention:
If the ‘creamy layer’ is defined very rigorously, it may be difficult to fill the quota of 27%. The unfilled seats would go the general category. As there is to be an expansion of capacity, quotas for SEBCs would then have the perverse effect of giving more seats to the general category.
This is bound to trigger a strong political reaction. The exclusion of the ‘creamy layer’ also presents problems in light of the trend towards rising fees in higher education. Whatever the provision of loans and scholarships, high fees do pose a barrier to the economically weak. If we are to have inclusion in education while leaving out the ‘creamy layer’ in quotas, regulation of fees appears inevitable. The National Knowledge Commission has recommended the creation of a regulator for higher education.