The 10 per cent quota Bill neither intends adequate/proportionate representation nor is a procedure to eliminate poverty. The objective is to provide indemnity and insurance to unreserved populace
Drawing unfettered powers from the Kesavananda Bharati (1973) ruling by the Supreme Court, the Modi Government introduced the Constitution (124th Amendment) Bill, 2019, in Parliament to provide 10 per cent reservation in jobs and educational institutions to the economically backward section in the general category, which was subsequently passed by both Houses in record time of two days. It will be only with great difficulty that we can recollect the name of any Bill that witnessed the passage in both Houses with such unanimity. While the Lok Sabha passed the Constitutional Amendment Bill with 323 AYES, 3 NOES; the Rajya Sabha passed it with 165 AYES and 07 NOES. This affirmative action also received the President’s assent. As the Bill deals with Fundamental Rights, it does not require the nod of State Assemblies.
Ever since the introduction of this amendment, numerous questions have been raised about its Constitutional validity, with references being made to the 1992 decision by the Supreme Court in Indra Sawhney versus Union of India; applicability of the economic criterion as the basis for reservation; reservation being an instrument to ameliorate poverty; and the inability of the Government to resort to alternate procedures like welfare programmes and policies for the welfare of the economically weaker sections from the unreserved strata.
There was no political immunity either to greater good intended or affirmative action. Criticisms were hurled at the Modi Government — the Bill was branded as “a step to do away with caste-based reservations” and a “populist measure to reap political gains” with the 2019 General Election in mind.
Undoubtedly, India’s social engineering that predates many centuries had noble intentions in the form of delineating occupations and services across caste groups, rendering those services among themselves and, thus, driving dependence among the groups to deliver social bonhomie. In the course of time, however, the noble intention took a hit and deteriorated into caste oppression and further to untouchability — social bonhomie transformed to social evil. The tales are different for the Scheduled Tribes and Other Backward Classes. The incessant social inequities drove these classes — Scheduled Castes, Scheduled Tribes and Other Backward Class — lower in the echelons of social order.
If reservations were not provided to these classes, meritocracy and efficiency would have been the order of the day with all likelihood that these classes are being under-represented. Post Independence, the Parliament recognised and eventually provided reservations — vertical in nature — through the Constitution to these socially and educationally backward classes of the Indian society; in 1950 to the Scheduled Castes and Scheduled Tribes; and in the early 1990s to the Other Backward Class. All of this to ensure adequate representation in educational institutions and Government posts; Scheduled Castes: 15 per cent; Scheduled Tribes: 7.5 per cent; and Other Backward Class: 27 per cent — all of which aggregated to 49.5 per cent.
The insertion of clause 4 in Article 15 and Article 16 of the Constitution provided the basis for reservation to the backward classes. Consequently, equilibrium established by right to equality and equality of opportunities was displaced. It is, therefore, apt to get Pareto efficiency, also referred to as Pareto optimality, into context: It is an economic state where resources cannot be reallocated to make one individual better off without making at least one individual worse off. Put it other way, it implies that resources are allocated in the most efficient manner but does not imply equality or fairness. This state of reallocation of resources was very well captured in the Indra Sawhney 1992 judgement.
So, in an attempt to create an egalitarian society and to normalise periodic agitations against the Mandal Commission report in 1980, the then PV Narasimha Rao Government issued an impugned Office Memorandum dated September 25, 1991, which stated that 10 per cent of the vacancies in civil posts and services under the Government of India shall be reserved for other economically backward sections of the people, who are not covered by any of the existing schemes of reservation.
The Supreme Court’s response to the aforementioned memorandum is captured in the 115th paragraph of the Indra Sawhney 1992 judgement, which is as follows: “The impugned Office Memorandum dated September 25, 1991, does not say whether this classification is made under Clause (4) or Clause (1) of Article 16. Evidently, this classification among a category outside Clause (4) of Article 16 is not and cannot be related to Clause (4) of Article 16. If at all, it is relatable to Clause (1)”.
In the same judgement (paragraph 95), the Supreme Court emphatically declared that 50 per cent rule is applicable only to reservations made under clause 4 of Article 16 and that reservations cannot breach the 50 per cent mark — on the basis of social and educational backwardness.
While the memorandum fell apart, agitations demanding reservations therein did not die down. The last decade is replete with instances of vociferous agitations, including violent protests from communities of the unreserved strata like Kapus from Andhra Pradesh, Marathas in Maharashtra, Jats from Haryana, Gujjars from Rajasthan and Patidars of Gujarat among others. These communities have exerted pressure on previous dispensations as also on the current Union Government to provide effect to their economic vulnerability by way of inclusion in extended scope of backward classes. Likewise, in the last decade, various State Governments have either issued memorandums or passed legislations to harmonise with the aforementioned agitations and nudged the Government at the helm, including the present dispensation, to include those acts in the Ninth schedule citing judicial immunity.
Wisdom prevailed with the Modi Government and it has neither resorted to expanding the scope of the backward classes nor included the state reservation Bills in the Ninth schedule. A populist dispensation would have acted otherwise. So, the Union Government — with reference to the apex court’s judgement in Indra Sawhney (1992) — introduced additional 10 per cent reservation for the unreserved sections based on certain economic criterion while clause 6 was inserted in the Article 15 and Article 16 to acquire constitutional validity.
Seeing this from a different dimension, it can be emphasised that the Bill promotes social brotherhood and cohesion as well as prevents caste perpetuations. The Government does not believe in reducing the cut off marks or setting lower standards for clearing the interview process in order to uphold the top court’s judgement pronounced in the Indra Sawhney case: Service posts should ensure efficiency in the administration.
As per the Mandal Commission report, Scheduled Castes, Scheduled Tribes and the Other Backward Class classes represent 74.5 per cent of the Indian population. A simple math would yield that 66 per cent population of these classes are covered under reservation. Evidently, only 40 per cent of the unreserved strata are covered under the current 10 per cent quota provision, which is vertical in nature.
So, this Bill neither intends adequate/proportionate representation nor a procedure to eliminate poverty. The objective was to graduate from doles, freebies and inefficient welfare programmes to the Constitution for providing indemnity and insurance to the unreserved populace. This affirmative action is a classic instance of Pareto improvement — change in allocation harms no one and helps at least one person, given an initial allocation of goods for a set of persons. The sabka quota Bill is definitely a stamp of accreditation to the secular credentials.
Whether it is incessant efforts in achieving the constitutional status to the National Commission for Backward Classes or delayed decision to extend the creamy layer to Scheduled Castes and Scheduled Tribes reservations (Jarnail Singh, 2018 Supreme Court judgement), the Union Government has expressed unquestionable intent on the welfare of the Scheduled Castes, the Scheduled Tribes and the Other Backward Class. In the wake of this Bill, any mudslinging on BJP-led Modi Government, that it wants to do away with reservations, should be construed as a mere political hurl.
(The writer is Member, Manifesto sub-committee on Social Welfare, BJP Telangana)
