The Supreme Court’s five-member Constitution Bench judgment on reservation for the Economically Weaker Sections (EWS) has led to a contending discourse – whether it is socioeconomically retrogressive or progressive from the point of view of Scheduled Castes (SCs), Scheduled Tribes (STs) and the Other Backward Classes (OBCs). On 10 November 2022, an online seminar was organized by lawyers of the All Bar Association (ABA) and the All India Backward and Minority Communities Employees Federation (BAMCEF) activists. It examined a possible future course of action to prevent the judiciary and the government from misleading the OBC, SC and ST productive masses.
On 7 November 2022, the 3-2 majority judgment upheld the government view and the dissenting view of two judges, including that of Chief Justice U.U. Lalit, asked some tough questions. The ABA advocates – some of whom were associated with the petitioners’ legal team – are of the view that the Constitution does not structurally talk about caste as an institution that needs to be abolished to ensure that the society advances towards caste-free egalitarianism.
Article 46 mentions caste thus: “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
The word ‘caste’ thus appears only as part of ‘Scheduled Castes’. Nowhere in the Constitution the Shudras/OBCs are recognized as a people oppressed because of the castes they belong to. They have been treated as belonging to a backward class of citizens (based on Article 16) or a socially and educationally backward class of citizens (based on Article 15). This language of class in relation to OBC reservation gave ample scope for the anti-reservation politicians of all parties, intellectuals, the media and so on, to push class-based reservation for the EWS, which resulted in the 103rd amendment to the Constitution. Now the Supreme Court has given its stamp of approval.
Most of the judiciary is in agreement with reservation for a class in which all castes would be included because even the Dwija (twice-born) castes stand to benefit from such an arrangement. Any economic-criteria based reservation brings the relatively poor among the Dwija castes to education and employment, in addition to the well-to-do Dwijas who are already overrepresented in the State.
Yet another question is that while defining the basic structure of the Constitution, its provisions to neutralize potential causes of discrimination like caste, class, race, gender, place of birth have to be taken into account. Ever since the implementation of the Mandal commission’s recommendations in the early 1990s, all the left, liberal and Hindutva ideologues have been pressing for economic criteria for reservation with a deliberate view to underplay caste-based graded illiteracy, poverty, inequality, oppression and exploitation in society. Most interpretations of the Constitution by judges and legal experts have been class-oriented. They have been of the view that class and not caste is the most suitable category for reservation.
The SCs, STs and OBCs have not produced a giant legal luminary since Ambedkar to intervene in the event of misleading legislations and judicial pronouncements. There is a need to fill that gap now. A strong view is that an amendment to the Constitution that incorporates a provision for addressing caste-based discrimination meaningfully is the way only out of this quagmire. For that, a strong movement in civil society and legal and intellectual spheres is an essential condition.
The Rashtriya Swayamsevak Sangh (RSS) and the Bharatiya Janata Party (BJP) talk up Hindu unity by pointing to the minorities – Muslims and Christians – but their actual work in institutions in all sectors is to push back the Shudra OBCs, SCs and STs. The judiciary is their control centre. It is this branch in the constitutional structure of separation of powers that finally determines the fate of democracy. Hence, making the judiciary inclusive with proportionate entry of OBCs, SCs and STs with a good grounding in Indian and international law is essential. They need to become legal pundits like Ambedkar. There is no other way to establish a balanced democracy with justifiable inclusiveness. The general masses do not understand the intricacies of litigation. Only well-trained, competent legal experts from among the OBCs, SCs and STs can fight the legal battles to usher in a truly representative State.
Since the judiciary is the authority to interpret the laws, unless there are strong contending legal intellectuals from the productive masses at all levels – particularly at the Supreme Court and High Courts – protecting their interests in the judicial system is impossible. The role of the English language in this battle is critical. In the absence of English-speaking legal experts, the SCs, STs and OBCs are left to become victims of legal and political manoeuvring. They cannot even sense what is happening in the corridors of power, which run through the Supreme Court, too.
Mass movements on the streets or loud parliamentary debates do not help change these judicial control mechanisms. The ruling forces make laws or bring about the amendments to the Constitution like the one allowing EWS reservations with utmost speed and skill even when majority of the MPs sitting in Parliament are OBCs, SCs and STs. With its huge parliamentary majority, the RSS-BJP have been undermining the rights of these deprived sections more cleverly than the Congress did earlier.
The problem is elsewhere. Both in the Bar and on the Bench, the SCs, STs and OBCs are either not there or even if they are there, they are unable to grasp the tricks of the trade. These productive masses need a legal intelligentsia that could match Ambedkar to understand these tricks and to convince the whole country that all the productive castes who have gained nothing all these years will not be fooled. Both street and legal battles will have to go to another level to change the situation.
Except the Dravida Munnetra Kazhagam (DMK), the Shudra/OBC regional parties have no courage and confidence to fight these battles. They are dependent on those few Dwija votes in their respective states.
Yet another problem is that the Shudras who are not eligible for OBC reservation like the Jats, Patels, Reddys, Kammas, Velamas, Nairs and so on, are also supporting EWS-type policies hoping that their youth will get admission into public educational institutions and get government jobs. But the data of the implementation of EWS in the Centre-run institutions over the last two years seems to suggest that these castes haven’t really benefited. The real beneficiaries again are the Dwija castes who have an educational advantage over the Shudra upper layer as well. The Shudra upper-layer castes are in power in some states but they have not acquired any decisive space in the national intellectual sphere. Even in the judiciary they are not a force to reckon with.
Even in EWS reservation, the 8 lakh income ceiling will be used by the Dwijas to their advantage. The OBC so-called creamy layer or the other Shudras not eligible for reservation won’t be able to compete with the Dwija youth in the education sector for several years to come.
The EWS judgment affirmed a strong prevailing Dwija judicial view that reservations and corruption are the main reasons for Indian backwardness, hence the reservation system should be done away with gradually. This line of thinking will rule the entire media unless there is powerful resistance from the SCs, STs and OBCs. This is not unlike the superstitions the SCs, STs, OBCs have been fed with over centuries: “If they eat food they will weaken. If they starve, God will give them more strength.” There are still many believers in such theories. Unless the productive masses put up an intellectual resistance, the Dwijas, who have no qualms in claiming that superstition is science, will declare the Constitution to be a myth. This EWS judgment points in that direction.
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