The Supreme Court turns reservation policy on its head

 

The Supreme Court turns reservation policy on its head

The basic objective of constitution providing reservation to socially and educationally backward classes of citizens was to enable them to overcome the historical discrimination they suffered at the hands of the upper caste Hindu community. The reservation for SCs and STs-15% and 7.5% respectively- in education and government service was a temporary measure meant for 10 years, which is being extended periodically, with no end in sight.  V.P. Singh government in early 1990s opened a Pandora's Box by extending the reservation benefits by 27% to Other Backward Classes (OBCs) on the basis of Mandal Commission recommendation.

 

The reservation benefits were given to the communities of SCs, STCs and OBCs because they were socially and educationally backward, as compared to the upper castes. In 2019, the Modi government passed the 103rd Amendment to the Constitution providing 10% reservation to Economically Weaker Sections (EWS) among the otherwise socially and educationally advanced members of the upper castes, exceeding 50% overall limit for reservation, as per the Supreme Court judgment in the Indra Sawhney case, 1992.

 

More than 40 Petitions were filed in the Supreme Court challenging the Amendment on the ground that it violated the doctrine of basic structure of the Constitution as enunciated by the apex court in its judgement in the Kesavananda Bharati case, 1973. However, in a clear departure from its earlier judgment, the five-judge bench of the Supreme Court on November 7,2022, upheld the Amendment sanctioning 10% reservation exclusively for EWS among the members of the forward castes, ruling that the 50% limit for reservation is not sacrosanct and inflexible. Thus, the Court has turned the very basic principle of reservation on its head, perpetuating the reservation instead of bringing it to a closure. It is strange that an additional judge upholding the amendment, as against the two dissenting judges, should create an unpleasant situation. Had the verdict been unanimous, it would not have become a bone of contention.  The Supreme Court by a 3:2 verdict validating the Amendment is likely to create fresh problems.

 

The constitutional amendment providing the EWS quota exclusively for the upper castes, while excluding the poorest among the SC, ST and OBC communities, is not only discriminatory, but also violates the right to equality. The dissenting judgment of Chef Justice U.U. Lalit and Justice Ravindra Bhat says, “By excluding the poor among SC/ST/OBC…the amendment practices constitutionally prohibited forms of discrimination …Our Constitution does not permit exclusion and this amendment undermines the fabric of social justice and thereby the basic structure…the ‘othering’ of socially and educationally disadvantaged classes by excluding them from this new reservation on the ground that they enjoy pre-existing benefits is to heap fresh injustice based on past disability.” And the judgment expands the grounds for affirmative action behind social and educational backwardness to include economic backwardness as the criterion for reservation.

 

The Supreme Court has now reversed its nine-judge bench judgment in the Indra Sawhney case which, while upholding the OBC reservation, ruled that the advanced sections of society should be excluded from the reservation benefits as the Constitution does not provide for reservation solely based on economic criteria.  The new reservation for EWS is available for rich people owning land and property, but having less than Rs.8 lakh annual family income, while these norms do not apply to the categories of SC, ST and OBC for the purpose of availing the benefits of EWS quota.  It is not reservation for the poor at the bottom of the social ladder, but to benefit the advantaged groups on the top of social hierarchy.  

 

Professor Satish Deshpande of Delhi University rightly says, “Any illusions that this is a step forward in the fight against poverty can easily be laid to rest if you compare the EWS scheme to any of our anti-poverty schemes…the most recent rural and urban all-India poverty lines are pegged at Rs.972 and Rs.1,407 respectively. Taking the average to be roughly Rs.1,200 per person per month, and assuming a household of five members, this amounts to a yearly consumption expenditure of Rs.72,000. The eligibility limit for EWS of Rs.8 lakh per annum is more than 11 times this amount. Clearly, economic weakness has nothing to do with poverty.”  Further, there are important differences with the ‘creamy layer’ exclusion- also pegged at Rs. 8 lakh- required for availing OBC reservation.

 

The argument that the exclusion of communities that benefit from the existing reservation norms to achieve emancipation of economically weaker sections is flawed. When those exempted from filing IT returns are only those with taxable income below Rs.2.5 lakh per annum, it makes no sense to extend the reservation benefits to sections earning up to Rs.8 lakh.  To extend the benefits of economic backwardness only to the general category is to deny equality of opportunity to more than 80% of the BPL families belonging to SCs, STs and OBCs.

 

The new reservation scheme is meant for the upper caste Hindus.  And political parties can’t afford to displease them, for fear of losing their votes.  Sushil Kumar Modi, former Deputy Chief Minister of Bihar, said: ‘How will they ask for votes from the upper caste groups? They have no moral right to ask for votes from the upper caste groups.’  Thus, the EWS quota is essentially an appeasement of the upper castes to consolidate the vote bank politics. To M.K. Stalin Chief Minister of Tamil Nadu, it is a setback to the century-long struggle for social justice. The reservation was never meant for groups not historically disadvantaged. The forward caste communities will manipulate income certificates to be eligible for the EWS quota, creating uneasiness among the poor and the deprived. It is important to realise that the reservation benefits under the present system are mostly grabbed by the well-off among the SCs, STs and OBCs, depriving the benefits to those really backward and deserving. This new EWS quota is not caste neutral. It is a double whammy for the socially and educationally backward sections.   

If the dominant upper caste groups, who otherwise dominate politics and administration, take the route of ‘economic backwardness’ to avail the benefits of reservation, it is a death-knell to social justice. It is a mockery of the policy of protective discrimination or affirmative action. When people look for a label of ‘backwardness’- be it social or economic- to advance, it is outright downgrading of human dignity and self-esteem. And politicians and political parties are promoting this mindset to divide people on caste lines to subserve their narrow electoral interest.