The Bommai Govt's Manipulation of the Reservation Policy Is an Exercise in Deceit

Though the government appears to be working to resolve the demands of various communities, all it has really delivered is a few changes in name and an Act that is legally untenable.

As the Karnataka elections draw closer, the Bharatiya Janata Party (BJP) government led by B.S. Bommai has been resorting to manipulative politics around the reservation policy to evade the strong anti-incumbent sentiment seeping into the state.

In the bargain, the government is also dismantling the edifice of the policy of social justice itself. This is more than evident in the way that it has dealt with the simmering discontent around three burning issues related to the reservation policy in the state.

The situation at present

To understand what was demanded by the various communities and what the government delivered, it is necessary to take a look at the existing reservation regime in Karnataka.

Category 1: 4% for the 95 most backward castes;

Category 2(a): 15% for the 102 more backward castes;

Category 2(b): 4% for Muslims, who comprise almost 11-12% of the population;

Category 3(a): 4% for the Vokkaliga community and other equivalent castes;

Category 3(b): 5% for the Lingayat community, including all its sub castes, as well as for the Christians, Bunts and others;

SC: 15% for 102 castes; and

ST: 3% for 50 groups.

Total reservations: 50%

This matrix of reservation was formulated in 1994, following the report of the  third backward class commission headed by Justice Chinnappa Reddy and the limitation imposed on the quantum of reservation in the Indira Sawhney case in 1992.

More or less the same regime was continued even by the Fourth Backward Class Commission report in 2002, and even today, with just a few additions of castes into different categories

However, since the last few years, the Panchamasali Lingayat community has been demanding a change of category from 3(b) to 2(a), the Vokkaliga community has wanted a hike in their reservations allocation from 4% to 12% and the Kuruba (shepherds) and Madiwala (washermen) communities, who are categorised as 2(a), have been wanting to be considered as scheduled castes.

Aside from this, there has been a two-decades old demand to reclassify the SC reservations, based on the Justice Sadashiva Commission which filed its report in 2012.

But none of these demands have been met. Instead, the Bommai government hiked the SC-ST allocation by 6%, based on the Justice Nag Mohandas Commission report, and passed the Karnataka Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) bill in the Belagavi session of the assembly held in December 2022, without taking any steps to procure constitutional immunity for the act.

This takes the overall reservation quota to 56%, which breaches the 50% upper limit imposed on SC, ST and OBC reservations by the Supreme Court.

Meanwhile, the Sadashiva report was not tabled even in the Belagavi session of the assembly.

Thus the Bommai government took SCs, STs, and the Vokkaligas and the Panchamasali Lingayats for a ride, using deceitful measures and changes in name only.

False promises

On the last day of the Belagavi assembly session, the BJP government approved the  interim report of the Backward Class Commission which suggested doing away with categories 3(a) and 3(b) in the existing reservation matrix and creating new categories called 2(c) and 2(d) instead.

The government then migrated all the castes under 3(a) – the Vokkaliga community and equivalent castes – with their existing 4% quota to 2(c) and the castes under 3(b) – the Panchamasali Lingayat community and others – with its quota of 5% to 2(d). Effectively, however, this means that only category names were changed.

Now the government is contemplating the idea of increasing the quotas of 2(c) and 2(d) by adding the surplus allocation from the 10% EWS quota that will be available after it provides for the five castes who come under the EWS category in the state. This idea is based on the assumption that the EWS beneficiaries in the state will not comprise more than 3% of the population,thus leaving 7% of the EWS quota as surplus.

Obviously there are many social, legal and constitutional flaws in this assumption, of which the government is well aware.

First of all, there is no provision in the EWS law to share any quota surplus with the OBC quota. The amendments 16 (6) and 15 (6), which came into being after the inclusion of the EWS category for the purpose of affirmative action in education and employment, make it clear that the EWS quota is available only for “any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5)”, i.e., except for the SC, ST and OBC classes.

Second, the government is also aware that no empirical study has been done to suggest the percentage of EWS reservations required in the state since the Social-Economical Caste survey conducted way back in 2016 by the Karnataka state government has not yet been approved by the government.

Third, even if it is assumed that any extra quota could be shared with the Vokkaliga community and the Panchamasali community, the overall quantum of the SC, ST, and OBC reservations would breach the 50% upper limit, which the Supreme Court forbids.

Fourth, there is no  empirical evidence to justify sharing  the surplus only with the Lingayat community and the Vokkaliga community, and not with any other communities on the SC, ST and OBC lists.

If the government is determined to show the Panchamasali and the Vokkaliga communities that it is working hard on their behalf, it could put them on the EWS list. But this is not possible without the empirical evidence of their needs provided by a proper socio-educational-economic survey. Even if such a survey was done, these two communities would have to compete with the more socially and educationally advanced communities that fall within the EWS quota. Moreover, since the EWS list is based on economic merit, it is not clear if a caste based sub classification within the EWS is possible. At the same time, the Brahmin community has declared a state level agitation against the inclusion of other backward classes as their peers in the EWS quota!

Despite all this, if the Vokkaligas and the Lingayats were to be reclassified into the EWS quota, they would get a reservation allotment of only 7% in comparison with the 9% that they already get as OBCs in categories 3(a) and 3(b) which have now been renamed 2(c) and 2(d)!

This is why the political leaders of the Panchamasali Lingayats have already rejected the government proposal and have set a deadline to implement the community’s old demand of inclusion in category 2(a).

Meanwhile the high court has given a stay on this order till the next hearing on January 30. This could be read as a blessing in disguise for Bommai because the Lingayat chief minister now has a court order with which to rescue himself from the impossible promise made in the Belagavi session.

An Act without teeth

The Bommai government increased the SC reservation quota from 15% to 17% and the ST quota from 3% to 7% first by an ordinance and then through an Act passed in the Belagavi session. But this takes the overall quota of SC, ST and OBC from 50% to 56%, which violates the 50% upper limit. Several Supreme Court verdicts have stated that breaching the 50% limit for reservations is allowed only for the EWS quota. In 2021, a Supreme Court constitutional bench of five judges which struck down a hike in the Maratha quota in Maharashtra also mandated that SC, ST and OBC reservations cannot breach the 50% upper limit.

In fact, Justice Dinesh Maheshwari clarified in his judgment as part of the majority judgment in the EWS case that the 50% upper limit of the reservations quota can be breached only in the case of reservations for ‘upper’ castes under the EWS quota, not for any community that falls under the SC, ST or OBC classes.

Though this order may be considered unjust, it remains the law of the land until it is changed by a higher bench or nullified by parliament.

Hence, the hike of 6% to the SC and ST communities of Karnataka will become legitimate only if it is included in the 9th schedule of the constitution. This would be possible only by an Act of parliament. But the Bommai government has shown no signs of lobbying the Union government for such an Act.

Even so, inclusion under the 9th schedule cannot protect the Act. In 2007, the nine judge constitutional bench of the Supreme Court in the I.R. Coelho vs State Of Tamil Nadu case declared that laws inserted in the 9th schedule are not free from judicial review. Thus the only way left is a constitutional amendment to increase the upper limit of 50% even for those not on the EWS list. This is in the domain of the BJP’s political will since it has the required numbers in parliament. But here too, there is no sign of any such thing happening.

Sadashiva report delayed again

The Bommai government betrayed the communities once again by not tabling the Sadashiva Commission report in the recently concluded Belagavi session. Instead, it constituted a cabinet sub-committee to look into the issue of internal reclassifications. This committee met only once and shows no sign of urgency in the commission of its task.

Moreover, the reclassification would only be possible in one of two ways. First, if the constitution were amended by inserting a new clause (3) to article 341, empowering the state legislature to reclassify the SC reservation, or second, if the Union government expedited and impressed the Supreme Court to constitute a seven judge constitutional bench to overcome the impasse created by the five judge bench verdict in 2004 that prohibited further reclassification of the SC reservation. Though a Supreme Court bench in 2020 ordered that state legislatures could have the power to reclassify SC reservations, this bench also comprised five judges, so its order could not undo the 2004 order.

In both these ways, the BJP government at the Centre could bring about a speedy remedy for the communities of Karnataka. But the BJP government in the state has done nothing to lobby the Union government to do so, making it clear that though the BJP boasts of a double engine government, neither engine will work for Dalits.

Shivasundar is a columnist and activist in Karnataka.