Basis for New Quota

Now that reservation for the economically weaker in the general category has become law with the President giving his assent, the focus shifts to the apex court where its constitutional validity will be examined. There are those who criticise the new law as the outcome of political deal-making by parties anxious to keep the upper castes in good humour ahead of the elections. But it would do well to remember that such a measure has been promised by different parties ever since the Mandal Commission report brought in reservation for backward classes from the early Nineties. This explains why last week the Constitution (103rd Amendment) Act, 2019 was passed in Parliament in two days with the ruling coalition scrambling to take credit and opposition parties calling it a ‘belated’ move. While the BJP extolled the Act as a gift for ‘youth of poor families’ that will open the doors to their ‘golden future’, the Congress while voicing support asked what is the benefit in giving reservation for jobs ‘when no jobs are being created’; the BSP while dubbing it a ‘political gimmick’ asked why the government went about it in such ‘immature way without preparation’; as parties with core OBC electorates, the Samajwadi Party demanded higher quotas for backward classes commensurate with their ‘56% strength in the population’, while the DMK said a ‘disastrous game’ with backward classes has been started by the government. It is significant that despite being a constitutional amendment bill, the government positioned it as a bill not needing ratification from half the State Assemblies; the Law Minister argued that the bill was only amending fundamental rights under Articles 15 and 16 through Article 368. The amended law now allows the State to make ‘special provision’ for advancement of any ‘economically weaker’ sections of citizens; it also specifies that the reservation would be ‘in addition to’ the existing reservations and subject to a maximum of ‘10 percent of the total seats in each category’. So this 10% quota will be over and above the existing 49.5% reservation for SCs, STs and OBCs.

The new law has been challenged in Supreme Court by the NGO ‘Youth For Equality’ primarily on these two grounds — that the apex court’s 50% ceiling limit on reservation cannot be breached, and more importantly, that economic criterion cannot be the sole basis for reservation. Back in 1992, the Supreme Court had struck down an executive order passed by the Narasimha Rao government for a 10% quota in civil posts and services for ‘economically backward upper castes’. The SC constitutional bench ruled that reservation cannot be given solely on the basis of economic considerations. Caste too cannot be the sole criterion, which is why the formula for OBC reservations gives weightage to social backwardness, educational and economic status in 3:2:1 ratio. This reaffirms the constitutional principle that reservation is to be given only to those victimised by the caste system — the aim is to empower the hitherto disadvantaged classes through representation. This is clearly reflected in Article 15(4) which allows the State to make any ‘special provision’ for advancement of any ‘socially and educationally backward’ classes of citizens or for ‘scheduled castes and scheduled tribes’; Article 16(4) also allows the State to make any provision for reservation of appointments or posts in favour of ‘any backward class of citizens’ which, in the opinion of the State, is ‘not adequately represented in the services’ under the State. So the economic backwardness criterion has not found specific mention in the Constitution. The question is — can the three aspects of backwardness worked out so far for reservation, namely social, educational and economic — be considered separately from each other? In the parliamentary debate last week, Finance Minister Arun Jaitley argued that while the 50% ceiling is for caste-based reservation (in which social backwardness carries highest weightage), the government is proposing reservation for the economically poor.

Does this signify that in future, the basis for reservation will shift to low economic status — rather than deprivation due to caste? Those who oppose this shift argue that it reduces affirmative action to a policy for poverty removal, that it marks the beginning of the end of social justice hitherto sought to be addressed through caste-based reservation. They contend that if it is a matter of mere poverty rather than social victimisation, it could be dealt with through appropriate corrective measures. This is primarily the question being taken to the apex court for consideration. But there are disquieting trends. When pushing the bill in Parliament last week, the government failed to put up any data as to how many people could potentially be in the 10% quota in general category, or the current representation of this targeted section in public jobs and educational institutions. This was questioned in Rajya Sabha, yet not followed up to hold the government to account for failing to do its homework. Influential groups like the Patidars, Jats, Marathas and Kapus have been pushing hard for reservation, while demands are being continually raised to bring more groups under SC/ST quotas. There is surely a continuing need for affirmative action to give a leg-up to genuinely disadvantaged groups, but doing this without proper study and transparent methodology is asking for trouble. Is there a concerted move by votaries of dominant groups to change the discourse on social justice completely to poverty in the 21st century — away from caste victimisation (with poverty as but one aspect) in the earlier centuries? If governments are taking the constitutional amendment route to withstand court scrutiny, it could start another face-off between the Executive and the Judiciary. This must be avoided, while good solutions are sought to give the deserving a better deal.