Modi govt's 10% quota for economically weaker upper castes not a new offer; move likely to face judicial scrutiny

In a move that is likely to heat up the political scenario ahead of the 2019 Lok Sabha elections, the Union Cabinet on Monday approved 10 percent reservation in government jobs and educational institutions for economically weaker sections in the general category, meaning upper castes. Consequently, the Centre is expected to introduce a constitutional bill in Parliament on Tuesday to circumvent the 50 percent threshold on quota set by the Supreme Court of India.

However, the Cabinet's decision is likely to face judicial scrutiny and backlash from experts.

Eligibility criteria

Any family from the general category that holds less than five acres of agricultural land, owns less than 1,000 square feet of residential property and earns less than Rs 8 lakh per annum is eligible to seek reservation. Additionally, those who own a residential plot below 100 yards in a notified municipality, or a residential plot below 200 yards in a non-notified municipal area, are eligible to avail of the new policy.

Interestingly, the latest decision is likely to benefit the economically backward among upper caste Hindus as well as Muslims and Christians.

Modi govts 10% quota for economically weaker upper castes not a new offer; move likely to face judicial scrutiny

File image of Prime Minister Narendra Modi. YouTube screengrab

Also, the income limit for the economically weak in the general category has been kept the same as for those who belong to the "creamy layer" of Other Backward Castes (OBCs).

The present situation

Since the implementation of the recommendations of the Mandal Commission, 49.5 percent of government jobs and seats in educational institutes are reserved. As much as 15 percent is reserved for candidates from Scheduled Caste communities; 7.5 percent is reserved for Scheduled Tribes; and 27 percent is reserved for OBCs, a category absent prior to the 1990s.

In Tamil Nadu and Maharashtra, however, reservation goes well beyond the 50 percent cap imposed by the Supreme Court after the Indira Sawhney & Others versus the Union of India case. The reservation stands at 69 percent in Tamil Nadu and at 68 percent in Maharashtra.

Unique cases of Tamil Nadu and Maharashtra

Tamil Nadu is a unique case study in India's reservation policy. The state has kept its reservation policy safe from judicial intervention, thanks to the IX Schedule of the Constitution of India. Any Act of Parliament or legislatures added to this schedule is beyond judicial review. When both the Supreme Court and Madras High Court ordered the state to bring reservation down to 50 percent, the then J Jayalalithaa government had sought the Centre's help to include the Tamil Nadu Reservation Act, 1994, in the IX Schedule.

Maharashtra, through the 2001 State Reservation Act, became the second major state to cross the 50-percent mark. According to the 2001 Act, 52 percent of public sector jobs came under quota. The divide includes 13 percent reservation for Scheduled Castes; 7 percent for Scheduled Tribes; 19 percent for Other Backward Classes; 2 percent for Special Backward Classes; 3 percent for Vimukta Jati; 2.5 percent for Nomadic Tribe-B; 3.5 percent for Nomadic Tribe-C (Dhangar); and 2 percent for Nomadic Tribe-D (Vanjari). However, with the state government granting 16 percent reservation to the Maratha community, the total reservation in Maharashtra now stands at 68 percent.

Not a new promise

The idea of quota for economically weaker sections of the population is not new. Former prime minister PV Narasimha Rao was the first to support the idea, but he backed out after the Supreme Court capped reservation at 50 percent.

In the aftermath of the Patidar protests in Gujarat, the state government approved 10 percent reservation for "economically weaker sections". However, it was struck down by the Gujarat High Court as "unconstitutional".

Regional players like the Samajwadi Party, Bahujan Samaj Party (TDP), Telugu Desam Party (TDP) and Janata Dal (Secular) have also promised economic status-based reservation in the past.

Ahead of the 2008 Karnataka elections, former prime minister HD Deve Gowda promised reservations for forward class poor. "All political parties should evolve through consensus on a social and economic support system for the poor among the forward classes," he had said.

In 2011, BSP chief Mayawati had written to the Centre demanding reservations for upper caste poor. In her letter, she had also urged then prime minister Manmohan Singh to add quota based on financial conditions in the IX Schedule.

In its 2014 Lok Sabha manifesto, the Samajwadi Party had promised to set up a Savarna Aayog, or upper caste, commission to look into the issues faced by people in upper caste communities. The party also promised reservation for the poor among the upper castes.

More recently, Andhra Pradesh chief minister and TDP president Chandrababu Naidu indicated that he is ready to extend reservations to include economically backward upper castes.

An old debate

The debate on whether reservation in India should be based on economic backwardness or caste is as old as Independent India. It was a hot topic of debate in the Constituent Assembly. The vague interpretation of the term "Scheduled Caste" during the debates had led to many members questioning the logic of caste-based reservations.

One such member, Mahavir Tyagi, had opined: "The term 'Scheduled Castes' is fiction. Factually, there is no such thing as 'Scheduled Castes'. There are a variety of castes with different problem situations."

He had also said something that may resonate among modern-day opponents of caste-based reservations: "There are thousands of Brahmins and Kshatriyas who are worse off than these friends belonging to Scheduled Castes. So by the name of Scheduled Caste...and a selected few of these castes get benefit. No caste ever gets benefit out of this reservation. It is the individual or the family that gets benefited."

However, Ambedkarites have been opposing any change in the reservation criteria. They believe that economic conditions can change within a lifetime, but the genesis of poverty in the Dalit community stems from centuries of social oppression. For Ambedkarites, reservations are a means to fight caste-based deprivation. Unsurprisingly, Babasaheb Ambedkar's grandson Prakash Ambedkar has called any attempt to introduce economic status-based reservation "fruitless".

Nevertheless, Maharashtra Navnirman Sena chief Raj Thackeray has repeatedly come out in support of granting quota based on economic backwardness. "Reservation based on caste should be scrapped. The reservation should be given only for the economically backward," he had said in 2016.

The way ahead

The path ahead is likely to be tricky for the government. The bill may fail the legal test as it allows reservations to exceed the 50-percent cap on quota set by the Supreme Court.

Moreover, the focus on "economic backwardness" is likely to be challenged in courts as only social and educational backwardness are considered valid reasons to provide reservations. The landmark Indra Sawhney case had ruled out economic backwardness as the sole reason for quota.

Economic reservation is also likely to be considered a violation of the basic structure of the Constitution. As per the landmark judgment in the Keshavananda Bharati case, the basic structure of the Constitution cannot be violated. This means that amending articles 15(4) and 16(4) of the Constitution by adding the word "economically" may also violate its basic structure.

The government may add the bill to IX Schedule to protect it from judicial review. Yet, the court can scrutinise the law if it is found to be violating the basic structure of the Constitution of India.

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Updated Date: Jan 08, 2019 08:59:57 IST

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