Nearly 30 years after a 50% ceiling was imposed on total reservations, SC is considering the issue afresh. Is it time to lift the cap or not?
Quotas cannot be reduced to a math formula. Leave decision to the states
Justice (Retd) D Hariparanthaman(FOR)
In the famous Mandal case (Indra Sawhney vs Union of India), a ninejudge bench of the Supreme Court recorded that the Hindus who form the majority in our country are divided into four varnas —Brahmins, Kshatriyas, Vysias and Sudras —–forming a four-tier hierarchical caste system. All women are supposedly Sudras.
Panchamas (untouchables) are outcaste and they are subjected to suppression by all the four varnas. In short, inequality is inbuilt in the caste system. Thus, Sudras (Socially and Educationally Backward Classes — SEBCs) and the untouchables (Scheduled Castes) are deprived of education and excluded from administration. SEBCs, SCs and STs constitute backward classes.
The following lines are extracted from the judgment of Madras High Court dated 18.04.1914 in Gopala Moopanar vs Dharmakarta Subramaniya Iyer, rendered by Justice Sadasiva Iyer: “Owing, however, to the repression of Kshatriyas and Vysias by the Brahmins in the medieval ages, most of the Kshatriyas and Vysias have descended to the position of Sudras”.
Thus, the backward classes, who are deprived of education and excluded from administration, constitute a big majority among the Hindus. The debate on the reservation and the percentage thereon shall be made, taking into account this historical background.
While Article 16 (4) of the Constitution has provided reservation in public employment to backward classes, unfortunately the Constitution originally enacted did not provide for reservation in education. This led to insertion of Article 15(4) by way of the very first amendment to the Constitution extending reservation to education.
Reservation to backward classes has faced various hurdles caused by the dominant castes. One such hurdle is an attempt to fix a ceiling of 50% on the quantum reservation.
Nowhere does the Constitution prescribe a 50% ceiling on quota. Yet in 1962, a fivejudge bench of the Supreme Court in the M R Balaji vs State of Mysore case laid down that reservation should be less than 50%.
However, in 1975, another five-judge bench of the Supreme Court in the State of Kerala vs NM Thomas case, considering all the decisions relating to the 50% ceiling, concluded that the percentage of reservation would be incumbent on facts and circumstances of each case and no hard and fast rule could be laid down. The quota matter cannot be reduced to a mathematical formula so as to be adhered in all cases uniformly.
In fact, the Supreme Court gave an illustration that if a state government provides 80% reservation based on the population of backward classes in that state being 80%, the policy cannot be faulted with. As per the judgment, the dominant object of reservation is to take steps to make inadequate representation adequate for backward classes in public employment and education.
But, SEBCs were not identified by many state governments as well as the central government under Article 340 of the Constitution, thereby denying them reservation. It was only in 1990 that reservation of 27% to SEBCs was provided by the V P Singh government in central government employment by implementing Mandal Commission recommendations.
There is no blanket ban with respect to the percentage of reservation in the Mandal judgment, as in the 1962 judgment referred to above. However, it took about two more decades for the central government to provide 27% reservation in education to SEBCs. Still, many state governments in North India have not provided reservation to SEBCs in education and public employment.
The constitutional goal can be achieved only if the SEBCs, SCs and STs occupy the higher echelons of service and not the lower services alone. Justice Chinnappa Reddy of the Supreme Court expressed his view in Vasanth Kumar’s case in the following words: “Why not ask ourselves why 35 years after Independence, the position of the Scheduled Castes, etc. has not greatly improved? Is it not a legitimate question to ask whether things might have been different, had the District Administrator and the State and Central Bureaucrats been drawn in larger numbers from these classes?”
Now, even after 75 years of Independence there is no improvement in the situation, since there are not many judges f rom the SEBC, SCs and STs in high courts and the Supreme Court. There is almost nil representation for reserved cat e gories among the executives/secretaries in the Central Secretariat where policies are decided, in IITs and IIMs and in Public Sector Undertakings. It is time the judiciary-invented 50% cap is done away with, leaving the responsibility to the governments, as clarified in the NM Thomas case of 1975.
(The author is a retired judge of Madras High Court)
Crossing the current 50% ceiling may eventually leave us with 100% quotas
D Shyam Babu(AGAINST)
Of the reasons to oppose the proposed stretching of all quotas in government jobs and in seats in colleges beyond the current 50% ceiling, some are fairly trivial. For example, one argument is that the measure (now a question before the apex court) may be contrary to what our Constitution makers envisaged while another sees it as reeking of votebank politics.
We find the provisions for reservations in favour of the Scheduled Castes and the Scheduled Tribes (SC/STs) in articles 330, 332 and 335 of the Constitution of India. While the first two articles stipulate quotas in the legislature, article 335 deals with job quotas. Nowhere else does one find any provisions of reservations for any other group(s). At present all quotas for groups other than the SC/STs are granted as exceptions to the fundamental right to equality. The governments are not even bothered to amend the article 335 to add new groups, as it would expose the bankruptcy at not thinking through the whole matter.
Parliament has the power to add new provisions to the Constitution and the Supreme Court through judicial review can uphold a law constitutional. Therefore, legal or constitutional arguments against crossing the 50%mark do not hold water, though they are sound and logical. While upholding the OBC reservations in 1992, the court in a way lifted the floodgates halfway, and now it is set to determine whether any more lifting is warranted.
As for the insinuation of vote-bank politics, that’s how democracy works. However, the outrage against the matter is this: For decades we have been witnessing the arguments that certain groups deserve reservations as they are as poor and as deprived as the SC/STs. Now it is formal and constitutional that the OBCs are identical to the SC/STs. So, the implication is that while in 1950, a fourth of India’s population (SC/STs) was very poor and discriminated against enough to grant them reservations, in 2021 anywhere around two-thirds of India’s population are indeed the SC/STs!
How have we managed this stupendous accomplishment? By amending the Constitution!
It is a welcome development that a constitution bench is looking into the matter in a comprehensive way. The big picture starts with the Constitution (102 amendment) Act of 2018 which established the National Commission for the Backwards Classes (NCBC). Parliament copy-pasted the article 338 to create article 338 (B).
Article 338 created the National Commission for the SC/STs. In the early 2000s, this article was duplicated as article 338 (A) to create a separate commission for the STs. The move did not attract much attention as the SC/STs are identical in several respects. Therefore, articles 338 for the SCs and 338 (A) for the STs neatly fit into our constitutional scheme as well as our moral imagination.
But the trouble comes with another replica of article 338 as article 338 (B). We are bound to hear arguments in favour of increasing quotas above 50% that groups such as Marathas, Patidars, Jats, etc are not just poor but they are similar to the SC/STs, nay they are also the SC/STs but called the OBCs. That seven decades of democratic governance has not only increased the number of poor people but rendered many of them similar to the SC/STs is an unconscionable twisting of the reality.
Beneath the surface of demands and arguments for more quotas is the sentiment that each group deserves its share of resources, and that share ought to be proportionate to its numbers. It may sound reasonable and be consistent with the logic of democracy. But, given that India stands finely sliced into thousands of sub-castes, proportionate social justice will result in more litigation, demands for quotas from every other group, and what have you. The real question, therefore, is not whether to cross the 50% ceiling, but whether to have 100% quotas.
Recently, Michael J Sandel of Harvard University has revived, in his book, The Tyranny of Merit, an old idea on how the lottery could be a better way of selecting successful candidates for college admissions. Instead of drawing the merit list of a few hundred out of thousands of applicants, a simple system could be worked out by first eliminating the bottom one-tenth or one-fourth who are found to be unfit, and then selecting the winners through lottery. India’s governance failures have created both the victims and the fake winners. The mere accident of one’s birth determines whether one would be a winner or a loser. We need a system that will neither punish the victims nor reward the winners. Lottery to select candidates for college admissions and public employment could be that system, not increasing the quotas.
The writer is senior fellow, Centre for Policy Research, Delhi
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