It's not about so­cial jus­tice for all

Why the gov­ern­ment’s de­ci­sion to amend the Con­sti­tu­tion to per­mit 10 per cent reser­va­tion for eco­nom­i­cally back­ward up­per castes smacks of des­per­a­tion

Business Standard - - ISSUES AND INSIGHTS - KARAN THAPAR

What does the gov­ern­ment’s de­ci­sion to amend the Con­sti­tu­tion to per­mit 10 per cent reser­va­tion in ed­u­ca­tional in­sti­tu­tions and gov­ern­ment jobs for eco­nom­i­cally weak per­sons from the sec­tion of the pop­u­la­tion presently not ben­e­fit­ting from reser­va­tions tell us about the Prime Min­is­ter and the Bharatiya Janata Party? Their sup­port­ers will claim it is proof of an abid­ing com­mit­ment to the poor and to so­cial jus­tice for all. How­ever, to leave it at that would be facile and gullible. For it is also true this move re­veals a sense of panic as the PM and his party view their elec­toral prospects.

Let me, there­fore, first ad­dress the claim this move is not pri­mar­ily in­tended to en­hance so­cial jus­tice. If it had been, the gov­ern­ment would have ini­ti­ated it at the out­set of its ten­ure and not barely 90 days be­fore the elec­tions. Equally, it would have made stren­u­ous ef­forts to con­vince all po­lit­i­cal par­ties rather than spring a sur­prise and hope their de­lay tac­tics fail in the Ra­jya Sabha. Third, if re­ports that the Con­sti­tu­tional Amend­ment Bill was pre­pared in haste and se­crecy are true, they would cor­rob­o­rate the view the mea­sure was ini­ti­ated as an elec­toral ploy rather than an ide­o­log­i­cal com­mit­ment.

Why the BJP is ap­pre­hen­sive of its elec­tion prospects is easy to es­tab­lish. After los­ing Ch­hat­tis­garh, Mad­hya Pradesh and Ra­jasthan, the party could see its Lok Sabha tally de­cline by up to 44 seats. Per­haps more sig­nif­i­cantly, after the Sa­ma­jwadi and Bahu­jan Sa­maj par­ties have so con­vinc­ingly agreed on an al­liance the BJP could lose an­other 30 or 40 seats in UP. And after the state elec­tion out­comes in Gu­jarat and Kar­nataka it is hard to see the BJP win­ning as many seats again in these two states. Fi­nally, mak­ing up for these losses will be dif­fi­cult when it is los­ing al­lies in Bi­har, up­set­ting them in UP and the North­east and pos­si­bly fight­ing against them in Ma­ha­rash­tra.

On top of this, there is ru­ral dis­tress and the gov­ern­ment’s fail­ure to cre­ate the promised two crore jobs a year. In fact, the Cen­tre for Mon­i­tor­ing In­dian Econ­omy be­lieves 84 per cent of the 11 mil­lion jobs lost last year were ru­ral jobs. No won­der Naresh Gu­jral, an Akali Dal MP and ally, has pub­licly pre­dicted the BJP can­not get more than 150 seats.

Now that these new reser­va­tions have been passed by Par­lia­ment will they stand up to ju­di­cial scru­tiny? There are key is­sues that the Supreme Court will want to study. First, can the Con­sti­tu­tion be le­git­i­mately amended to per­mit reser­va­tions for the eco­nom­i­cally weak?

There are two con­cerns here. A nine-judge con­sti­tu­tional bench in the In­dra Sawh­ney case of 1992 ruled that “a back­ward class can­not be de­ter­mined only and ex­clu­sively with ref­er­ence to eco­nomic cri­te­rion”. This Amend­ment is try­ing to do just that. Equally im­por­tantly, it also changes the very char­ac­ter of reser­va­tions. Hith­erto they were in­tended to tackle the his­tor­i­cal de­pra­va­tion of those who for gen­er­a­tions have been so­cially and ed­u­ca­tion­ally back­ward. Now they’re also be­ing used as a way of un­der­tak­ing poverty al­le­vi­a­tion. Will this be ac­cept­able to the Supreme Court?

A sec­ond is­sue is the view these reser­va­tions breach the 50 per cent cap placed by the Court in the In­dra Sawh­ney judg­ment. De­spite Fi­nance Min­is­ter Arun Jait­ley’s ar­gu­ment that the cap does not im­pinge upon the new cat­e­gory of reser­va­tions for the eco­nom­i­cally weak, for­mer chief jus­tice A M Ah­madi, who was part of the nine-judge bench that de­liv­ered the judge­ment, has said these reser­va­tions are “di­rectly in con­flict” with the Supreme Court’s po­si­tion. “The judge­ment clearly men­tions that reser­va­tions should not ex­ceed 50 per cent”, he has said. “The Supreme Court had put a cap so that reser­va­tions are not in­tro­duced, and the limit in­creased, only for elec­tion pur­poses.”

I as­sume the BJP is hop­ing the ma­jor­ity of the in­tended ben­e­fi­cia­ries will not be aware of these po­ten­tial le­gal in­fir­mi­ties or will give the party credit for tak­ing a step oth­ers have merely promised but never im­ple­mented. In other words, the BJP is hop­ing to gain by mak­ing the at­tempt rather than by its suc­cess. That, again, sug­gests the tac­ti­cal and op­por­tunis­tic na­ture of this ini­tia­tive. It’s to win elec­toral sup­port rather than de­liver ac­tual re­sults.

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