WHY 10% QUOTA COULD FAIL CON­STI­TU­TIONAL TEST

INDIRA JAIS­ING

Financial Chronicle - - EDIT, OPED, THE WORKS -

TO pre­dict whether the ‘Con­sti­tu­tion (One Hun­dred and Twenty Fourth Amend­ment) Bill, 2019’ will stand the scru­tiny in courts would be to take on the task of an astrologer. Yes, a few as­sump­tions may be made on the ba­sis of ex­ist­ing prece­dents on the sub­ject. It has passed through both Houses of the Par­lia­ment with all­party sup­port. Many have in­di­cated that this is cyn­i­cal vote-bank pol­i­tics, es­pe­cially on the eve of an elec­tion. Its jour­ney through the courts is likely to be far more bumpy. The big con­sti­tu­tional ques­tion will be whether the amend­ment vi­o­lates the ba­sic fea­tures of the Con­sti­tu­tion, democ­racy, equal­ity, and sec­u­lar­ism to name a few.

Eco­nom­i­cally weaker sec­tions do not con­sti­tute a ho­moge­nous class and hence an iden­ti­fi­able group mak­ing them eligible for reser­va­tion. There is hardly any doubt that with­out a con­sti­tu­tional amend­ment, the bill would be con­sid­ered il­le­gal, hence the need for a con­sti­tu­tional amend­ment which makes “eco­nom­i­cally weaker sec­tions” who have not hith­erto been eligible for reser­va­tions, now eligible.

Le­git­i­macy

All reser­va­tions in pub­lic em­ploy­ment for Sched­uled Castes and Sched­uled Tribes draw their le­git­i­macy from Ar­ti­cle 16 (4) which is the only ar­ti­cle in the Con­sti­tu­tion which uses the word ‘reser­va­tion’. Hence, the ear­li­est cat­e­gories of classes of per­sons for whom reser­va­tions were made were ‘Sched­uled Castes’ and ‘Sched­uled Tribes’. The his­tory of reser­va­tions for them goes back to the prein­de­pen­dence pe­riod where they were de­scribed as ‘de­pressed classes’. Ar­ti­cle 16(4) in turn has been in­ter­preted with ref­er­ence to Ar­ti­cle 46 of the Con­sti­tu­tion. Be­ing a Di­rec­tive Prin­ci­ple of State Pol­icy, Ar­ti­cle 46 which re­lates to Pro­mo­tion of ed­u­ca­tional and eco­nomic in­ter­ests of Sched­uled Castes, Sched­uled Tribes and other weaker sec­tions reads as fol­lows:

‘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 the Sched­uled Tribes, and shall pro­tect them from so­cial in­jus­tice and all forms of ex­ploita­tion’.

Now, for the pur­pose of in­clud­ing eco­nom­i­cally weaker sec­tions, the State­ment of Ob­jects and Rea­sons of the Bill, ref­er­ence has been made to Ar­ti­cle 46. This in­di­cates that the govern­ment would ar­gue that Ar­ti­cle 46 en­ables such reser­va­tions for eco­nom­i­cally weaker sec­tions.

The prob­lem, how­ever, is that it has been in­ter­preted to re­fer to SC, ST, and Other Back­ward Classes, in all of which cat­e­gories caste is a pre­dom­i­nant el­e­ment in “so­cial in­jus­tice and back­ward­ness”.

These reser­va­tions for eco­nom­i­cally weaker sec­tions make no ref­er­ence to caste and hence may not meet the test of Ar­ti­cle 46.

Ar­ti­cle 15(4) en­ables the state to ‘make spe­cial pro­vi­sion’ for the ad­vance­ment of the so­cially and ed­u­ca­tion­ally back­ward classes. For the first time in 1989, the then VP Singh govern­ment in­tro­duced reser­va­tions in em­ploy­ment for OBCs. Courts in In­dia have re­peat­edly em­pha­sised that nei­ther SCs and STs nor OBCs can be iden­ti­fied solely on the ba­sis of eco­nomic cri­te­ria. It is for the first time in con­sti­tu­tional his­tory that this bill seeks to make ‘spe­cial pro­vi­sions’ for the eco­nom­i­cally weaker sec­tions of cit­i­zens other than the SC, ST, and OBCs for reser­va­tions of ini­tial ap­point­ments un­der the govern­ment. The ex­pres­sion ‘eco­nom­i­cally weaker sec­tions’ have not been de­fined. How­ever, as per news re­ports, the govern­ment in­tends to give eco­nomic reser­va­tions to the ‘gen­eral cat­e­gory whose fam­ily in­come is below Rs 8 lakh per an­num or own less than 5 acres of land. Also, the per­son’s res­i­den­tial house should be below 1,000 square feet, and the res­i­den­tial plot should be below 100 yards in a no­ti­fied mu­nic­i­pal­ity area and below 200 yards in a non­no­ti­fied mu­nic­i­pal­ity area.’ There has been much de­bate whether these cri­te­ria could be con­sid­ered ‘eco­nom­i­cally weaker sec­tions’ of cit­i­zens. But that apart, the is­sue is more fun­da­men­tal.

Rang­ing from the ‘un­em­ployed’ to those who are below the poverty line and ending with a fam­ily in­come of Rs 8 lakh a year, they will all be con­sid­ered eco­nom­i­cally weaker sec­tions, mak­ing it im­pos­si­ble to say that they be­long to a ho­moge­nous iden­ti­fi­able group. The ques­tion, there­fore, be­comes: to whom will these 10 per­cent jobs go? While it is not pos­si­ble to say who be­longs to this newly con­sti­tuted class of eco­nom­i­cally weaker sec­tions, it is pos­si­ble to say who is ex­cluded. Hence, ev­ery cit­i­zen who is not an SC, ST or OBC will be eligible for the 10 per­cent quota. The Supreme Court has al­ready said that reser­va­tion can­not ex­ceed 50 per cent.

Raise limit

The bill makes no effort to in­crease the con­sti­tu­tional limit of 50 per cent to 60 per cent. In the cir­cum­stances, two sit­u­a­tions can arise.

Firstly, that reser­va­tions will go up to 60 per­cent mak­ing them clearly un­con­sti­tu­tional. Given that ev­ery sin­gle mea­sure for reser­va­tion in em­ploy­ment has been chal­lenged by the gen­eral or un­re­served cat­e­gory or ‘for­wards’ on the ground that their op­por­tu­ni­ties are shrink­ing, fur­ther shrink­age of 10 per­cent from their cat­e­gory is likely to lead to a con­sti­tu­tional cri­sis.

The al­ter­na­tive, to re­tain the 50 per­cent con­sti­tu­tional limit, the reser­va­tion for SCs, STs, and OBCs can be re­duced to ac­com­mo­date 10 per­cent of eco­nom­i­cally weaker sec­tions. In ei­ther case, the govern­ment will find it­self in a catch-22. The for­mer op­tion is bound to be struck down as un­con­sti­tu­tional, while the lat­ter will be com­pletely un­ac­cept­able to SCs, STs, and OBCs.

Cer­tainly, de­mands will be made by other groups to be con­sid­ered a ho­mo­ge­neous group, es­pe­cially women and reli­gious mi­nori­ties who are dis­crim­i­nated against. They can ar­gue that they form a group recog­nised by the Con­sti­tu­tion in Ar­ti­cle 15 and must be given stand­alone reser­va­tions, not hor­i­zon­tal reser­va­tion across groups.

Equally im­por­tantly, it will also be ar­gued that more than 99 per­cent of the coun­try is eco­nom­i­cally weak. The only peo­ple left out will be the su­per-rich.

Fi­nally, we need to ad­dress the crit­i­cal ques­tion of equal­ity and equal pro­tec­tion of laws. It has been the con­sis­tent ar­gu­ment of the for­ward classes or gen­eral cat­e­gory that they are en­ti­tled to equal­ity of op­por­tu­nity un­der Ar­ti­cle 16(1) which says that there shall be equal op­por­tu­nity for all mat­ters of em­ploy­ment un­der the state and which is de­nied by reser­va­tions for SC, ST, and OBC. Iron­i­cally, it is the up­per castes who will end up chal­leng­ing this law on the ground that their op­por­tu­ni­ties have shrunk. A govern­ment which claims reser­va­tions for those ‘poor’ among the up­per caste, if such a cat­e­gory ex­ists at all, will end up find­ing it­self pit­ted against the up­per castes.

The Supreme Court of In­dia has al­ways had an ex­tremely vexed re­la­tion­ship with its un­der­stand­ing of equal­ity. While some judges have taken the view that all reser­va­tions—in­clud­ing those for SCs and STs—are an ex­cep­tion to the right to equal­ity, oth­ers have held that reser­va­tions are a means of at­tain­ing equal out­comes for dif­fer­ent cat­e­gories of per­sons. While SCs have been de­fined with ref­er­ence to their his­tor­i­cal oppression of un­touch­a­bil­ity, STs by their ge­o­graph­i­cal ex­clu­sion, and OBCs by their so­cial and ed­u­ca­tional back­ward­ness, it will be for the first time that a ‘class’ will be de­fined nei­ther on the ba­sis of his­tor­i­cal oppression nor on the ba­sis of so­cial and ed­u­ca­tional back­ward­ness.

Ul­ti­mately, the ques­tion is how is a class con­sti­tuted for the pur­pose of giv­ing reser­va­tions. A class can nei­ther be over-in­clu­sive, not un­der-in­clu­sive. ‘Eco­nom­i­cally weaker sec­tions’ are likely to fail on this test. While the right of reser­va­tion con­ferred on SCs, STs, and OBCs has passed the test of be­ing group rights, “eco­nom­i­cally weaker sec­tions” may not pass the test of be­ing a group right. It is likely to put equally placed cit­i­zens against each other and favour one against an­other. This will be ar­gued as a clas­sic case of de­nial of equal­ity. The con­se­quences of the bill have not been thought through. It is likely to be chal­lenged on the most ba­sic of all rights, the right to equal­ity of law and equal pro­tec­tion of laws.

Poverty is not an im­mutable char­ac­ter­is­tic such as race or sex, nor is it stig­matic in the way caste is. It is pos­si­ble to erad­i­cate poverty with ap­pro­pri­ate pol­icy changes. A sus­tain­able and eq­ui­table econ­omy needs to be in place with re­dis­tri­bu­tion of in­come and wealth. The bill does not achieve that pur­pose.

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