The re­al­ity of 10% reser­va­tion for ‘eco­nom­i­cally back­ward’

The Free Press Journal - - EDIT - The writer is an in­de­pen­dent se­nior jour­nal­ist.

Leave aside the rhetoric around reser­va­tion, the fact is, it is of­ten the last re­sort in In­dian pol­i­tics. When the gov­ern­ment pro­poses it around elec­tion time, it is of­ten a sign of des­per­a­tion. It’s a fa­mil­iar script that has been writ­ten many times be­fore: in 1996, for in­stance, when the gov­ern­ment sought to ex­tend Sched­uled Caste (SC) sta­tus to the SC con­verts to Chris­tian­ity, and in 2014 when the gov­ern­ment no­ti­fied Jats as Other Back­ward Class (OBC) in nine states. It is an­other mat­ter that af­ter the elec­tions, such pro­pos­als of ex­tend­ing reser­va­tion to those who don’t have it are ei­ther put on the back burner or are struck down by courts.

The stun­ning speed with which the cur­rent gov­ern­ment’s pro­posal to pro­vide 10 per cent reser­va­tion for the ‘eco­nom­i­cally back­ward’ of the up­per castes passed the test of both houses of par­lia­ment has not only sur­prised many, it has also led to sev­eral ques­tions be­ing asked about the gov­ern­ment’s mo­tive be­hind the move, the le­gal chal­lenge it is likely to face and the log­i­cal in­con­sis­ten­cies it suf­fers. Ex­tend­ing reser­va­tion ben­e­fits in ed­u­ca­tion and gov­ern­ment jobs to for­ward castes with­out af­fect­ing the rights of the de­prived castes in a tear­ing hurry on the ba­sis of a mere arith­metic test in the lower and up­per houses of par­lia­ment smacks of po­lit­i­cal op­por­tunism, which is open to ques­tion on sev­eral grounds — eco­nomic, so­cial, moral and con­sti­tu­tional. Apart from its need and vi­a­bil­ity, the sur­pris­ing as­pect of the move is the re­def­i­ni­tion of poverty it­self.

In sim­ple words, given the sheer size of the pop­u­la­tion, the reser­va­tion bill seeks to cover, its pas­sage in par­lia­ment just af­ter half a day’s de­bate is less about eco­nomic jus­tice for the fi­nan­cial back­ward and more about elec­toral pol­i­tics. The haste with which the quota bill was passed, while ear­lier reser­va­tion mea­sures have taken sev­eral years to cross so­cial, po­lit­i­cal, leg­isla­tive and le­gal hur­dles, raises the sus­pi­cion that elec­toral con­sid­er­a­tions come first for most po­lit­i­cal par­ties, while the im­pli­ca­tions of their con­tentious de­ci­sions are left to civil so­ci­ety to de­bate and fight over and the courts to in­ter­vene and re­store con­sti­tu­tional or­der. Each time reser­va­tion pol­icy has been used as an elec­toral weapon, it has proved to be a treach­er­ous ter­rain and had se­vere con­se­quences. The prime ex­am­ple is the im­ple­men­ta­tion of Man­dal Com­mis­sion re­port in 1989 which changed the face of In­dian pol­i­tics.

The gov­ern­ment’s de­ci­sion to re­serve 10 per cent quota for up­per castes is widely seen as an at­tempt to win back the sup­port of gen­eral cat­e­gory vot­ers, a core base of the rul­ing party. Lately, these vot­ers have shown signs of drift­ing away from the BJP be­cause of its re­cent over­tures to Dal­its and OBCs. The BJP’s back­ing for reser­va­tion for Dal­its for pro­mo­tions and its bring­ing a bill to over­turn the Supreme Court’s or­der on Sched­uled Castes and Tribes (Pre­ven­tion of Atroc­i­ties) Act, are be­lieved to have cre­ated some re­sent­ment to­wards the BJP among its core voter base. This was ev­i­dent in the re­sults of the elec­tions in three heart­land states re­cently, which the BJP lost and where it won only 135 seats of the gen­eral cat­e­gory, against 249 it had won in 2013. This was a mat­ter of huge con­cern for the BJP. With reser­va­tion for the gen­eral cat­e­gory, the party is now look­ing at woo­ing back the alien­ated up­per classes in the Hindi heart­land, which has around 30 per cent of up­per castes votes.

The new law is also be­ing seen as means to pacify the Marathas, Pati­dars, Ka­pus and the Jats who have been de­mand­ing reser­va­tion over the last few years. These castes lag be­hind the up­per castes and are said to have sim­i­lar sta­tus as the OBCs — eco­nom­i­cally, so­cially and ed­u­ca­tion­ally. With the gen­eral elec­tions only a few months away, if things work out as in­tended, the BJP could end up get­ting the sup­port of its core voter base with­out alien­at­ing the back­wards castes, as the 10 per cent reser­va­tion for the gen­eral cat­e­gory will be over and above the ex­ist­ing quo­tas for the back­ward castes. It is for this rea­son that the Op­po­si­tion chal­lenged the bill, ques­tion­ing its tim­ing as well as le­gal stand­ing. There is a Supreme Court rul­ing that the ba­sic struc­ture of the Con­sti­tu­tion does not per­mit more than 50 per cent reser­va­tion.

There is no pro­vi­sion for reser­va­tion based on eco­nomic back­ward­ness in the Con­sti­tu­tion, but only on the ba­sis of caste-based dis­crim­i­na­tion. More­over, un­der the con­sti­tu­tional scheme of reser­va­tion, eco­nomic back­ward­ness alone can­not be a cri­te­rion. There­fore, the gov­ern­ment’s de­ci­sion is likely to face in­sur­mount­able ob­sta­cles laid down by the Supreme Court in its land­mark 1993 judg­ment in Indira Sawh­ney vs Union of In­dia. The 1993 judg­ment re­lated to an at­tempt by the then Narasimha Rao gov­ern­ment to pro­vide 10 per cent reser­va­tion for gen­eral cat­e­gory cit­i­zens based solely on eco­nomic cri­te­ria. It is the same pro­posal that has now been moved by the Modi gov­ern­ment. The only dif­fer­ence is that the Rao gov­ern­ment’s pro­posal was moved through an ex­ec­u­tive or­der in 1991, while the Modi gov­ern­ment has cho­sen the legally more se­cure way of con­sti­tu­tional amend­ment.

A day af­ter the reser­va­tion bill was passed in the Ra­jya Sabha, it has been chal­lenged in a pub­lic in­ter­est lit­i­ga­tion be­fore the Supreme Court by an NGO on the ground that it al­ters the ‘ba­sic struc­ture’ of the Con­sti­tu­tion and an­nuls pre­vi­ous bind­ing judg­ments of the apex court. Le­gal as­pects apart, there is no clar­ity on how the el­i­gi­bil­ity cri­te­ria for ‘eco­nomic weak­ness’ has been drawn up: the cap on an­nual fam­ily in­come of Rs 8 lakh, the agri­cul­ture land own­er­ship at 5 acres and the area of house not above 1,000 sq ft. These cri­te­ria are so lib­eral that they seem to cover al­most 95 per cent of In­di­ans not cov­ered by ex­ist­ing reser­va­tions.

In ab­sence of data on the num­ber of poor In­di­ans in the up­per castes, the gov­ern­ment seems to have no clue on how many eco­nom­i­cally weaker peo­ple are go­ing to ben­e­fit from the 10 per cent quota. In­dia is a de­vel­op­ing coun­try with a huge mid­dle class. It is also the new emerg­ing eco­nomic pow­er­house. But the new def­i­ni­tion of ‘eco­nomic back­ward­ness’ makes al­most the whole of In­dia eco­nom­i­cally back­ward. How­ever, peo­ple who earn more than Rs 2.5 lakh a year are li­able to pay in­come tax. This means that the gov­ern­ment con­sid­ers Rs 2.5 lakh in­come as suf­fi­ciently high to make peo­ple el­i­gi­ble to pay tax on it, while on the one hand, the gov­ern­ment re­gards Rs 8 lakh fam­ily in­come as eco­nomic back­ward­ness. This con­tra­dic­tion may lead to a new de­mand that the in­come cri­te­ria be re­duced and brought on par with in­come tax ex­emp­tion limit, so that the real poor and needy are ben­e­fited from the 10 per cent quota.

Po­lit­i­cally, reser­va­tion is a po­tent tool. But where are the gov­ern­ment jobs to em­ploy mil­lions of job­less youth? The BJP has played the reser­va­tion card quite well. What re­mains to be seen is whether peo­ple will see it as an elec­tion stunt that may not ben­e­fit them even­tu­ally.

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