You can call it a jumla or a political masterstroke, but the one thing that can be said for sure of the Quota Bill, introduced in haste in parliament on Tuesday, is that it goes against the very spirit of affirmative action as conceived in India.
While Union minister Arun Jaitley did serve a lot of bluster in parliament yesterday, he was silent on several nuances that the apex court is likely to take into consideration when the constitutional amendment for 10% reservation goes into judicial review.
A test of backwardness
The pioneer of savarna reservation was the Narsimha Rao government. In 1991, it specified that 10% vacancies in civil posts and services under the government shall be reserved for economically backward upper castes.
But the Supreme Court was quick to strike it down. It stated that reservation cannot be solely based on caste, nor can it be founded on economic considerations viewed in isolation.
This essentially means that mere poverty cannot be a test of backwardness.
Back then too – land holding and income were the criteria to test economic backwardness. To elaborate, let’s take, for instance, the UPA-II conferring reservations to Jats in 2014. Only a day before the general election dates was announced, the UPA government included Jats from nine states in the central OBC quota.
This decision was contrary to the advice of the National Commission of Backward Classes (NCBC), which has evolved a set of guidelines in the backdrop of the Indira Sawhney judgment and the Mandal Commission report. It is these guidelines that today form the parameters of inclusion for reservations as OBCs. According to these, social backwardness, educational and economic status with a relative weight-age of 3:2:1 and each having their own indicators form the nucleus of OBC reservations.
NCBC engaged Indian Council of Social Science Research as an expert body to study the socio-economic status of Jats through a 2% sample survey. The finding was that Jats are not socially backward. It also stated that they were not educationally backward and had adequate representation in public employment, armed forces, government services and educational institutions.
Social status, which carried the major weight-age studied parameters like dependence on menial labour for a livelihood, infant mortality rate, maternal mortality rate, deliveries at home etc, found Jats to be very well placed on the spectrum of social backwardness. The Supreme Court, citing these reasons, struck down Jat reservations in 2015.
The soul of the Indira Sawhney Judgment lies in the constitution of an expert committee or a commission to study backwardness, which in the current scenario would be backwardness among the 10% economically backward upper castes.
Article 15(4) of the constitution reads:
Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
While the Article clearly mentions social and educational status as an indicator, it does not mention economic status as a benchmark. It is this crevice that the BJP government is seeking to fill. But the amendment will not mean that the three cornerstones to determine backwardness – social, educational and economic – can be read separately from each other.
Article 16(4) of the constitution says:
Nothing in this article shall prevent the State from making any provision for the 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.
While the Mandal Commission and Indira Sawhney judgment lay the yardstick for the backwardness of OBCs, the amendment today was passed without defining backwardness of the 10% upper caste group.
The 10% of the general category earning less than Rs 8 lakh per annum and owning less than five acres of land with a residential house below 1000 sq ft would be easily 90% of the general category population.
It is necessary to know and study the representation in public jobs, educational institutions and armed forces of this 10% group. All the families with annual income below Rs 8 lakh cannot be treated as a homogeneous class in the absence of empirical study.
- The 10% of the general category earning less than Rs 8 lakh per annum and owning less than five acres of land would be easily 90% of the general category population.
Should these indicators not be defined? And if yes, which is the appropriate authority to define them? Is reservation to the proposed group the only answer? Can waiver of educational fees, scholarships or other welfare schemes not be alternate and legally sound solutions?
Moreover, there is the 50% rule that Union minister Jaitley argued in parliament yesterday does not apply to ‘open categories’. Ironically, this was the argument of the Gujarat government while defending a similar reservation for economically backward unreserved categories.
The Gujarat government’s argument that the 50% rule applies only to reservations for SC/ST/OBCs was struck down by the high court saying that while there is an exception to the 50% carved out in extraordinary situations such as in cases of people from far-flung areas who are oblivious to the nature of the mainstream life, there is no exception carved out for making departure beyond 50% in the present case. The ordinance was struck down. The high court also asked whether any detailed scientific and technical impact assessment study by experts was done and whether quantifiable and empirical data was collected. The answer was in the negative.
The Supreme Court in Indira Sawhney said that economic backwardness may give jurisdiction to a state to reserve, provided it can find out a mechanism to ascertain the lack of representation of such class. The question to ask is – which agency has determined the inadequacy of representation of the so-called 10% economically-backward upper castes?
The answer is none.
The Mandal Commission report rightly pointed out that in politics, caste may or may not play an important role but politics and constitutional exercises are not the same. Today, as the BJP government bypasses constitutional exercise – it is important to remind them of this cardinal rule.
Parakram Kakkar is a Delhi-based political consultant.