A five-member Constitution Bench of the Supreme Court, by 3-2 majority, has put its seal of approval on the parliamentary legislation providing reservation to poor savarnas, euphemistically known as the Economically Weaker Sections (EWS). While some approvingly say that the top court has only given its nod to a majority decision by Parliament, others argue that the judgment signals the last rites of social justice.
Just before the last Lok Sabha elections, the government led by Narendra Modi, on 8 January 2019, tabled the 103rd Constitution Amendment Bill in Lok Sabha. Within less than a week, on 14 January 2019, 10 per cent reservation was granted to economically weak savarnas (that is all communities which do not fall in the category of Scheduled Castes, Scheduled Tribes and the Other Backward Classes or OBCs) in admissions to government institutions of higher learning as well in services under the State. Before granting reservation to OBCs, Kaka Kalelkar and Mandal commissions were appointed and many studies were conducted. Nothing of the sort was done in the case of the savarna reservation – the Parliament cleared the Bill, and in a jiffy the legislation was promulgated.
The key difference in reservations for the OBCs and the savarnas is that one caste group had to fight for four decades to secure reservation, as the Parliament and the Supreme Court put one hurdle after another in its realization, while the other caste group faced no issues, as, from the Parliament to the Supreme Court, every institution gladly green-lit reservation proposed for them. The apex court was exceptionally obliging and had no problems breaching the cap that the court itself had set. These differences are enough to underline the biases of the system operating in our country. Any provision for reservations on economic criteria is anti-constitutional and, by implication, anti-national. Scores of human rights organizations and activists had filed PILs challenging the decision of the government in the Supreme Court, which the top court disposed of through its judgement delivered on 7 November 2022. Two judges on the Bench – outgoing Chief Justice U.U. Lalit and Justice Ravindra S. Bhat – wrote dissenting judgments, saying that the amendment was not constitutionally valid and violated the basic structure of the Constitution. They pointed out that the poor among the SC, ST and OBC communities were not eligible for the quota and so “this court has for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle”. They also pointed out that the new quota breaches the 50 per cent cap on reservations.
The central and the state government have been running a plethora of schemes for poverty alleviation, and these schemes should continue. In fact, they should be expanded and implemented more effectively. But reservations should be based solely on caste. This is the basic intent of the Constitution and the only way to combat the inhuman caste-based inequality and deprivation that has informed Indian society for centuries. Led by B.R. Ambedkar, the Constitution-makers of India had decided that social and educational backwardness should be the criterion for granting reservations. Of course, Dr Ambedkar was against continuing this arrangement for eternity, but the hegemonic casteist elements that dominated the governance system have not allowed proper implementation of this programme of positive discrimination.
The Supreme Court’s decision has created all sorts of apprehensions vis-à-vis reservations in the minds of a majority of Indians. A small section is ecstatic. It is the same section that had kicked up a big row when, in 1990, prime minister V.P. Singh decided to implement reservation for the OBCs. They had argued that it was an encroachment on the rights of the others and conspired to push the country into a cauldron of violence and instability.
However, this recent decision of the Supreme Court has opened new doors of opportunities and possibilities. The 50 per cent ceiling on reservations is gone. The Mandal Commission had recommended reservation for the OBCs in proportion to their share in population. However, only 27 per cent reservation was given to the OBCs and in reality, even that quota has eluded them. Now that there is no ceiling on reservations, all sections and communities should be given reservations in accordance with their share in the total population. A caste census should be conducted in a systematic and transparent manner to collect accurate and credible data on the numbers of different castes and to ensure that the formula of “jitni jiski sankhya bhari, uski utni hissedhari” (the more the numbers, the greater the share) can be implemented. Treating the ceiling on reservations as having been lifted, the Hemant Soren Government of Jharkhand has already raised the quota for OBCs from 14 to 27 per cent.
The Mahagathbandhan government of Bihar is working seriously on this front. Caste census is underway in the state and its report is expected by May next year. It is almost certain that Bihar will also breach the reservations cap and grant reservations to the OBCs in keeping with the recommendations of the Mandal Commission. Yet another positive aspect of the 103rd Constitutional Amendment is that it has paved the way for the reservations regime in the private sector. At a time when the number of jobs in the government sector is dwindling, it is imperative to mount pressure on the central government to expand the reservations regime to the private sector.
The central and the state governments have not been sincere in implementing the OBC quota and have been more interested in maintaining the status quo. The Congress government sat on the recommendations of the Kalelkar and Mandal commissions for decades. V.P. Singh did accept the recommendations under political pressure, but half-heartedly. In contrast, the Parliament and the Supreme Court both acted with great alacrity and adopted a positive approach when it came to EWS reservation. This shows that the state machinery is still under the thumb of the dominant groups. And it is these dominant groups that have ensured that the reservations roster was not implemented properly and reserved posts were kept vacant.
Demands for a review of the reservations regime and for fixing an expiry on for it have been raised from time to time from different platforms by people ranging from the Rashtriya Swayamsevak Sangh (RSS) chief Mohan Bhagwat to the judges who ruled in favour of EWS reservation. But no political party or organization has, so far, come up with a demand for effective evaluation of the reservations regime. On the other hand, it is emphasized repeatedly that a middle class has emerged among the Dalits and the OBCs. A couple of years ago, a Patna-based magazine had published a research-based article on what changes have come about in the social structure of Patna city over the past 25 years. The study based on a survey conducted by the magazine in many government and private offices in the city revealed that despite the implementation of the Mandal Commission report, the OBCs haven’t gained much – in the sense that they are not in leadership positions in any field.
Such studies expose the Goebbelsian lies of the dominant groups and indicate that the reservations regime is yet to be implemented sincerely. In these changed circumstances, it is imperative that the Bihar government directs its commissions for the Backward and Extremely Backward Classes to give a status update on the implementation of the reservations regime and ensure its implementation in its entirety. Also, other recommendations of the Mandal Commission should also be implemented.
(Translated from the Hindi original by Amrish Herdenia)
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