Every new quota deepens caste differences

| | JAYANT DAS
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Every new quota deepens caste differences

Wednesday, 16 January 2019 | JAYANT DAS | JAYANT DAS

A Constitutional amendment passed by Parliament last week is meant to expand the concept of reservation to favour the “economically weaker sections”. Those who are covered by the existing reservation for the SCs, the STs and the Socially and Educationally Backward Classes, a Constitutional category known in popular parlance as “Other Backward Class” (OBC), are not eligible for the proposed reservation of 10%. The amendment makes it clear that the new reservation in public sector jobs and education in both public and private sectors will be above the existing quotas. The Supreme Court had ruled earlier that the total quantum could not exceed 50%. Politically, the move by the Modi Government aims to placate upper caste Hindus though those not covered by any quota among the followers of other religions too are potential beneficiaries.

The amendment raises questions about its compatibility with the basic structure of the Constitution, which the court has held, cannot be altered even by Parliament. A petition is already pending in the Supreme Court alleging that the amendment violates the basic Constitutional structure. The idea of giving a 10%-reservation to the upper castes also raises other ethical and moral questions that may not be justiciable. Reservation is currently covered, primarily under Clauses (4) and (5) of Article 15 and Clause (4) of Article 16, which allow the State to make special provisions “for the advancement of any socially and educationally backward classes of citizens or for the SCs and STs.” The court has examined the concept of ‘socially and educationally backward classes’ and has ruled that caste can be a basis for inclusion in that category. In the Indra Sawhney vs. Union of India, the court examined the Government’s decision to implement the Mandal Commission report that stipulated a 27%-reservation for OBCs and ruled that economic criteria could not be the sole basis for reservation and the 50%-ceiling ought not to be crossed. All these questions will be reopened in the light of the new amendment.

The Supreme Court must focus on this issue while hearing the challenge against the hasty Constitutional amendment. It provides a 10%-quota in government jobs and educational institutions for economically disadvantaged people, defined in such elastic terms as to cover over 90% of the population. In theory, the quota is open to all, including Muslims and Christians. In practice, the quota will go almost entirely to the upper castes who have historically been oppressors, not victims. The court may strike down the new amendment for violating the basic structure of the Constitution. The Constitution clearly seeks an India free of historical divides like casteism, prohibiting discrimination on the basis of caste, religion or gender. It also provides job and education quotas for groups historically oppressed for so long that they merited reverse discrimination. These quotas were supposed to be temporary facilitators of change, to be abandoned as India moved towards a scientific temper that led to the withering away of caste. However, far from withering away, caste is becoming central to employment, education, politics and much more. Every new quota deepens caste differences and legitimises them. It does not matters that decades of reservation have failed to uplift SCs and STs. The aim of quotas is no longer to end casteism but to distribute privileged access to sundry vote banks.

In our first-past-the-post electoral system, even small but organised vote banks can make the difference between victory and defeat. India has no vote bank for excellence, merit or equality but has vote banks galore for every social divide. So, political parties cave in to one demand after another for caste-based privileges. It looks strange to claim that dominant landowning castes like Jats in Haryana, Patels in Gujarat or Marathas in Maharashtra are backward. Yet, these castes demand inclusion in the list of OBCs to qualify for OBC job and educational quotas. Instead of asking these historically privileged castes to stop this naked grab for privileges, all political parties have supported the legislation to include these dominant castes in the OBC list, leaving it to the courts to strike down such absurdities. Backwardness is no longer a historical tragedy, not even a fact, but simply a path to sneak in special privileges for the already privileged. Noting illustrates this better than the cutoff income of Rs 8 lakh per year to be declared economically backward. Trinamool’s Derek O’Brien derisively says the traditional poverty line is Rs 32 per person per day, but for the purposes of the new quota it has been raised to over Rs 2,000. The aim is not to combat deprivation but to extend quotas to 95% of the population, creating a much larger vote bank than constituted by the poor alone. The US once enacted school legislation with the slogan “no child left behind.” In India, the new scheme can boast “no vote bank left behind.”

The Government invoked the Directive Principles of State Policy contained in Article 46 to defend its proposal for reservation for the economically weaker sections. This could be questionable. Article 46 says, “The state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.” The “economically weaker sections of citizens were not eligible for the benefit of reservation. With a view to fulfilling the mandate of Article 46 and to ensure that the economically weaker sections of citizens get a fair chance of receiving higher education and participation in employment in the services of the state, it has been decided to amend the Constitution, the amendment Bill states.

In the Indra Sawhney case, Supreme Court held that while the Constitution permits quotas for the disadvantaged, it cannot override the principle of non-discrimination. So, it decreed that quotas cannot exceed 50% government jobs and educational positions. This balances different Constitutional provisions. That balance needs to be maintained. Equality before the law must be decreed to be fundamental to the basic structure of the Constitution and quotas as exceptions. If quotas exceed 50%, they become the rule and equality before the law becomes an exception. The Supreme Court is likely to reject that approach. If the 50%-ceiling is breached, why stop at 60%? Why not 75% or 90%? And why not have sub-quotas within each quota for sub-caste, gotra, and other social divides? This opens the door for ever-deeper social divisiveness.

Many intellectuals (including judges) have opined that quota should be based on economic criteria alone, not cast or religion.  That would be in line with the Constitutional provision of equality and promote the eventual abolition of casteism. There is a theoretical case for replacing cast-based quotas by income-based quotas. But the new 10%-quota, in addition to the existing cast-based 50%, is a cynical ploy to entitle almost all upper caste members, leaving out only a tiny upper crust. This has nothing to do with historical injustice and everything to do with political opportunism.

In the Indra Sawhney judgment, the court had said, “…the concept of ‘weaker sections’ under Article 46 is different from that of the ‘backward class’ of citizens in Article 16(4), but the purpose of the two is also different. One is for the limited purpose of the reservation and hence, suffers from limitations, while the other is for all purposes under Article 46… While those entitled to benefits under Article 16(4) may also be entitled to availing themselves of the measures taken under Article 46, the converse is not true. If this is borne in mind, the reasons why mere poverty or economic consideration cannot be a criterion for identifying backward classes of citizens under Article 16(4) would be more clear.” Whether the economically weaker sections among OBCs, SCs or STs could be excluded from reservation meant for the economically weaker sections is a contentious question.

(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha.jayantdas@hotmail.com)

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