Editor's note: This article is the second in a two-part series analysing the legitimacy of the Centre's decision to provide 10 percent reservation for economically weaker sections of the general category in government jobs and educational institutions.
By introducing 10 percent reservations for economically weaker sections of the general category, Prime Minister Narendra Modi is doing what PV Narasimha Rao tried to do — and failed — in September 1991. Rao had done that to placate upper castes, who he feared had deserted the Congress in the May-June 1991 Lok Sabha elections, and also because of resentment against the Mandal Commission report on backward classes. Modi, too, is doing this to woo the same upper castes, who he fears moved away from his BJP in the recent Assembly elections in the Hindi heartland.
But there is one difference.
Rao tried to bring in this reservation with an "office memorandum", while Modi has amended the Constitution. The Supreme Court had struck down Rao's decision as unconstitutional, whereas to make his own ploy constitutional, Modi has amended the Constitution, hoping that the court won't quash the move if it is called upon to do so. But here lies a judicial catch — in fact, many catches. For one, the Supreme Court, in its Indra Sawhney verdict of 1992, had quashed Rao's decision as unconstitutional not merely because it was made by way of an executive order.
This is what the apex court had said while nullifying the Rao government's decision: "Reservation of 10 percent of the vacancies among open competition candidates on the basis of income/property-holding means exclusion of those above the demarcating line from those 10 percent seats. The question is whether this is constitutionally permissible. We think not. It may not be permissible to debar a citizen from being considered for appointment to an office under the State solely on the basis of his income or property-holding. Since the employment under the State is really conceived to serve the people (that it may also be a source of livelihood is secondary), no such bar can be created. Any such bar would be inconsistent with the guarantee of equal opportunity held out by Clause (1) of Article 16. On this ground alone, the said clause in the office memorandum dated 25 May, 1991, fails and is accordingly declared as such."
An election lollipop
Although an obvious pre-election "lollipop" — a word Modi himself used to rubbish the farm loan waivers granted by Congress governments — his government is touting the 10 percent quota for economically weaker sections as a measure to help the poor among Hindu upper castes and other religions currently not entitled to any reservations.
But even before 1992 verdict, there was never a doubt that while economic criterion could be part of the basis to determine socially and educationally backward classes deserving of reservations, poverty alone could never be a ground to dish out quotas.
The predominant view has always been that reservations must seek to undo a historical wrong done to some communities and must attempt to pull them out of backwardness even if such a thing is a temporary strategy. Over the decades, pronouncements from the country's highest court have been consistent in expressing this view.
Put simply, the view is this: Upper castes are not known to have suffered social exclusion. And upper caste poverty, not a consequence of any discrimination, can be dealt with by other means, including liberal financial help.
But can Modi get away with his new quota because the 124th amendment, which his government rushed through Parliament, makes it constitutional in letter? Article 368 empowers the government to amend the Constitution, but as the apex court has ruled in the past, this is allowed only as long as the "basic structure" of the Constitution is not altered. It could be argued that Modi's 10 percent move does not conform to the Constitution's fundamental principle of equal opportunities and so the decision is not in tune with its "basic structure". It must be noted that the 1992 Indra Sawhney verdict had found the Rao government's move "inconsistent" with Article 16(1).
The Supreme Court had also said in the Nagaraj case of 2006: "We reiterate that the ceiling-limit of 50 percent (for total reservations), the concept of a 'creamy layer' and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency, are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse."
"Inadequacy of representation" refers to the proportion of a caste or class of people in government services. This is a key factor to determine backwardness that merits reservations, which has been ignored in the furore kicked up over Modi's quota. The fact that sharing of power or empowerment of the downtrodden is a significant yardstick to determine eligibility for reservations was not only emphasised by BR Ambedkar but has been the subject of unanimous judicial opinion.
In the case of the latest move, there has been no mention of any inadequate representation of poorer sections of the society, which makes it another potential ground for the Supreme Court to quash the law it if it is challenged before it.
Moreover, the Supreme Court must reverse all its collective judicial wisdom if it upholds the latest constitutional amendment. As the judges in the Indra Sawhney case said: "Reservation in public services either by legislative or executive action is neither a matter of policy nor a political issue." Don't miss the word legislative, the route that the Modi government took. The judges added: "The higher courts in the country are constitutionally obliged to exercise the power of judicial review in every matter that is constitutional in nature or has potential of constitutional repercussions."
It calls for a bizarre kind of surrealistic optimism on the part of the Modi government to hope that its politically-motivated decision will pass judicial scrutiny if its constitutional validity is questioned, which it is likely to be. But the BJP needn't worry. The possibility of any Supreme Court verdict, if the matter goes to court, arising before the Lok Sabha polls a few months from now is remote.
Isn't all this meant to be a carrot that the BJP is dangling before the upper castes, a carrot nobody may ever get?
The author tweets @sprasadindia
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Updated Date: Jan 13, 2019 13:32:04 IST