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Law

When It Comes To Reservations, the Supreme Court Needs To Change Its Approach

While the observations made by judges during the Maratha reservation hearing are not binding, their texture means that the statements must not be ignored or read in isolation.

“For how many generations will reservations continue?”

“This may be a beginning; all reservations may go and only EWS may remain, but these are all policies.” 

“It was for the Government to take a decision on dismantling caste and reservations.” 

These views were expressed by the judges of a constitution bench of the Supreme Court while hearing the submissions on the Maratha reservation. Before reflecting upon the above views, first, let us understand why reservation had to be provided while drafting the constitution.

Among various affirmative actions taken by a government for the underprivileged, reservation is an extreme measure – in contrast to other steps such as providing free education, housing, etc. – because it implies segregation of some posts for certain class of persons, which otherwise might have been secured by other persons. And this is why there is a perception that reservation gives benefits to some persons at the cost of others.

Given the way reservations actually work, a state does not adopt reservation as a routine measure for the upliftment of certain class of persons. There has to be sound reasoning to provide reservation. The problem sought to be remedied with the help of reservation should be of such a nature that a step other than reservation will not succeed.

Members of the Maratha community celebrate the Bombay high court’s judgment. Photo: PTI

Why reservations were mandated

The problem of non-representation of members of the Scheduled Caste (SC) and Scheduled Tribe (ST) communities in public employment at the time of independence was of this nature. And the reason for their deprivation from state services was neither non-availability of candidates nor lack of educational qualifications nor poverty. Rather, it was the age-old tendency of savarnas to oppress a class whom they treated as untouchables or indigenous people who remained outside mainstream society.

Consequently, the members of interview panels who belonged to the savarna community did not select candidates from these marginalised sections deliberately, due to their ingrained biases. This fact is a part of documented history. Constituent Assembly debates inform us that “Harijan members”, including R.M. Nalavade and H.J. Khandekar, narrated these facts during the deliberation on Article 16 (draft Article 10).

It was not possible to resolve this problem of non-representation by any method other than by reserving certain number of posts in favour of these communities, so that the selectors have no choice but to recruit them. Although, nowadays, they have devised new ways to escape from this obligation, such as, use of “none found suitable” (NFS) remark in respect of quota posts by interview boards; using this remark consecutively for three-four interviews and subsequently converting the quota posts into unreserved.

The above historical insights also clarify that reservation was not provided on the ground of economic backwardness, because economic advancement is possible through other policies also.

Also Read: Reservation Is About Adequate Representation, Not Poverty Eradication

After Independence, the problem of caste-based discrimination and inequality has become monstrous. Now it has been institutionalised and is practised in a systematic way. This is precisely because the oppressed classes tried to gain whatever benefits reservations could offer them, and started participating in the state apparatuses, though, to a limited extent.

The sudden change was not acceptable to the oppressors. This situation has been very well narrated by Ramdhari Singh Diwakar in his novel Dakhil Kharij. He narrates the frustration of a savarna man who came to know that the head of the village panchayat is now a Dalit woman, due to reservation. The man says to himself:

Kya zamana aa gaya hai! Mahilaaon ko, pichhdon ko aarakshan! Kaha bila gaye savarna!
(It’s very surprising. Reservation has been provided to women and the backward classes! Where are the upper caste people?)

More irksome for the man was the reaction of the woman who, instead of offering overwhelming respect to him, like her mother-in-law, said:

Maji, i babu saheb malik the aapke samay mein, ab nahin hain. Mukhiya main hun gram panchayat ki.
(He was chief in your times, but not now. The current head of the local body is me.)

Out of detest for and fear of such changes brought in by reservation, the savarnas invented new ways of oppressing them.

Photos of anti-caste and independence leaders in a panchayat office. Credit: Namita Waikar

The SC is asking the wrong questions

Despite this, the five-judge bench of the Supreme Court asked, for how many generations reservations will continue. It is absolutely the wrong question. Instead, the bench should look around and ask:

When will caste-based discrimination come to an end? Why are the backward classes not represented in the higher positions of state services, including the judiciary? Why is reservation not being implemented in its letter and spirit? Why backlog vacancies of these classes are not filled in? What is the sanctity of economically weaker sections [EWS] reservation when economic backwardness was not accepted as a stand-alone ground for providing reservation in Indra Sawhney (1992)? How can the Union government recruit directly to higher positions in civil services through lateral entry, bypassing the constitutional provisions? Why are public enterprises being privatised on such a large scale? Why is there no reservation in the private sector?

But it is maintaining a stoic silence on these issues.

Additionally, the bench said that all reservations except EWS may go, as it is a matter of policy. Indirectly, it said that the judiciary may not interfere in such decisions being policy matters. Such sudden remarks raise several more questions.

Was the bench catering to the general perception that caste-based reservations must go? While guessing the end of all reservations, why did the bench shield the EWS quota? Given the fact that the present government introduced EWS reservation, is the Supreme Court looking at the issue from the government’s perspective? Did the bench intend to set a plot before coming out with a shocking judgment on reservation? Did the bench consider the lived experiences of the backward classes as to how caste prejudices and upper caste hegemony severely affect their lives on a daily basis?

The answers to these questions are obvious.

Also Read: The Supreme Court’s Question About Reservations Is the Wrong One to Ask

The preamble to the constitution tells us that the constitution aims at, among other things, attaining equality and social justice. Reservation is a manifestation of the fundamental right to equality of opportunity in matters of public employment under Article 16(1) read with Article 14. It is the duty of the state under Article 46, read with Article 37, to promote the economic and educational interests of the SCs and STs, and to protect them from social injustice and all forms of exploitation.

Despite all the safeguards, if the state shies away from its constitutional obligations and makes a “policy” abolishing the reservations, will the judiciary remain a mute spectator on such arbitrary actions? We are told that the Supreme Court plays the role of sentinel on the qui vive (watchful guardian during a crisis). Judges take the oath to perform their duties without fear and favour and to uphold the constitution and the laws. (Emphasis added)

Another injudicious view expressed by one of the judges is that it was for the government to take a decision on dismantling caste. However, if this was the case, the constitution makers would have eliminated caste at the time of independence, because caste was not a blessing even at that time. It must be understood that derecognising caste formally is different from eliminating caste from the mindset of the people. Casteism is not so superficial.

Furthermore, those who dominate and benefit out of the present hierarchical social structure will never want to eliminate caste.

Members of Dalit community raise slogans during Bharat Bandh against the alleged dilution of the Scheduled Castes/Scheduled Tribes Act, in New Delhi. Credit: PTI

Protesters oppose the dilution of the Scheduled Castes/Scheduled Tribes Act, in New Delhi. Photo: PTI

Will caste be annihilated?

On the question of whether caste can be annihilated, Arundhati Roy replies:

“Not unless we show the courage to rearrange the stars in our firmament. Not unless those who call themselves revolutionary develop a radical critique of Brahminism. Not unless those who understand Brahminism sharpen their critique of capitalism.”

In the end, one should not lose sight of the fact that the above analysed statements do not form part of a judgment, and, thus, are not binding. During hearings, judges do ask questions of varying nature and make provocative statements to elicit answers from the arguing counsels. Whether views expressed during the Maratha reservation hearing imply similar intention or not, will be clear once the judgment is delivered. But, considering the texture of the above statements, the present anti-reservation environment and some of the recent problematic verdicts on reservation, the statements must not be ignored or read in isolation. They may have far-reaching implications.

Summing up, it is emphasised that the Supreme Court must change its approach with respect to reservation and see things from the perspectives of the backward classes. It must not become privy to the arbitrary actions of the government. It must realise that it cannot shy away from its role in bringing about equality and social justice. History tells us that when oppression reaches its highest point, the oppressed feel compelled to resist to survive and regain their dignity. Ramdhari Singh ‘Dinkar’ writes in Kurukshetra:

Nyaya shanti ka pratham nyas hai,
Jab tak nyaya na aata
Jaisa bhi ho mahal shanti ka
Sudridh nahin rah pata

(Justice is the foundation of peace
Where people are deprived of justice,
The structures of so-called peace
Do not last much longer.)

Kailash Jeenger teaches in the Faculty of Law, University of Delhi.