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.
On 30 November, 1948, when the Drafting Committee of the Constitution met under the chairmanship of BR Ambedkar, he made a significant point.
The chief architect of the Constitution said: "Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 percent...could anybody say that the reservation of 30 percent as open to general competition would be satisfactory (from the point of view of equal opportunities)? It cannot be, in my judgement. Therefore, the seats to be reserved...must be confined to a minority of seats. It is then only that the first principle (equal opportunities) could find its place in the Constitution..."
It was primarily this argument that prevailed over the opponents of any kind of reservations. The result was a Constitution that guaranteed both equal opportunities as well as reservations that, on the face of it, went against the principle of equality. But reservations " or protective discrimination " were meant to be a temporary measure to help bring 'unequals' to the level of equals. A succinct summary of this philosophy appears at the top of the Mandal Commission's 1980 report on backward classes in these words:
There is equality only among equals. To equate unequals is to perpetuate inequality.
In other words, what the Constitution's founding fathers had in mind were two dangers India faced: First, if there were no reservations, even if these were for some period of time, it was tough to achieve the ultimate goal of equality. And as Ambedkar said and many agreed with, if there were too many reservations which were discriminatory in nature, there was the danger of the country violating the principle of equality.
It's the second danger that India is being once again pushed into by the Narendra Modi government's constitutional amendment that proposes 10 percent reservations for economically weaker sections.
Going by the judicial wisdom pronounced with great care in the 70 years since Independence, there are at least four reasons why the Modi government's move, besides being morally retrograde, goes against the very spirit of the Constitution " even if it conforms to the letter because of the amendment " and may be struck down by the Supreme Court if it's challenged.
- The move crosses the 50 percent barrier for total reservations, which has come to be regarded as a "rule" enforced by the Supreme Court.
- Reservations can't be doled out on the exclusive basis of economic backwardness, as Supreme Court and other social science experts have been pointing out ad nauseam for long. Reservations can't be turned into a poverty-alleviation programme.
- Only those sections of society who are under-represented in the government service deserve reservations.
- The very farcical nature of the criteria to determine the so-called economic backwardness makes almost everybody eligible for the new category of reservations.
Breaching the ceiling
When it takes effect, the government's new move raises the level of reservations to 60 percent, including the 50 percent available for Scheduled Castes/Tribes and Other Backward Classes (OBCs).
This goes higher than the 50 percent ceiling "or less" on reservations that the Supreme Court came up with as far ago as 1962. In what's known as the Balaji case relating to reservation of 68 percent of engineering and medical seats for SC/STs and BCs in Mysore state (as Karnataka was then called), the Constitution Bench of the Supreme Court said that reservations beyond "permissible and legitimate limits is a fraud on the Constitution."
The verdict said: "A special provision...like reservation of posts and appointments...must be within reasonable limits...but if under the guise of making a special provision, State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Art. 15(4)...we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50%; how much less than 50% would depend upon the relevant prevailing circumstances in each case."
In the Devadasan case of 1963, the court upheld this limit even in the case of jobs under Article 16(4). Since then, the 50 percent ceiling has come to be considered a "settled view" of the Supreme Court.
It was on the basis of this that the Mandal Commission limited the reservations for OBCs in its 1980 report to 27 percent so that along with the quotas for Scheduled Castes/Tribes, the total came to 49.5 percent. The commission, in fact, said that the backward classes it had identified in the country accounted for 52 percent of the population. (It's another matter that estimates by other agencies, however, pegged the proportion of India's OBC population at 32 percent or 29.8 percent.)
But the top court's "settled view" in the 1962 Balaji case came under question after the Supreme Court verdict in the Thomas case of 1975. In the case relating to Kerala, Justice SM Fazalali of the seven-judge bench said that the 50 percent limit was only a "rule of caution and does not exhaust all categories". And in the 1985 Supreme Court verdict in the Vasanth Kumar case, judges differed on whether the Thomas case overruled the 50 percent cap. Some claim that the remarks made in the Thomas case were obiter dicta (by the way) but not ratio decidendi (rationale for decision).
Then came the much quoted judgment of 1992 by the nine-judge bench headed by the then Chief Justice MN Venkatachaliah, in the Indra Sawhney case. This verdict upheld the 50 percent ceiling, though it said the limit could be stretched in "extraordinary" situations. It said: "In doing so, extreme caution is to be exercised and a special case made out."
Supporting the "50% rule" in the Nagaraj case of 2006, the apex court warned that if the extent of reservation went beyond cut-off point, the channel of open competition would get "choked", leading to "reverse discrimination".
The Modi government is not on a strong legal ground when it claims that the Supreme Court ceiling is applicable only to caste-based reservations. That's because one of the compelling reasons for the 50 percent limit had nothing to do with caste; it was the reduced availability of opportunities for the general pool that worried judges.
Besides, a new category of reservations not based on caste but on poverty was struck down in 1991, when the PV Narasimha Rao government had a go at it. Unlike what Modi's supporters would have us believe, the court didn't quash it only on technical grounds.
Author tweets @sprsasdindia