Prof. Rasal Singh
A five-judge bench of the Supreme Court led by Chief Justice of India (CJI); Uday Umesh Lalit has decided last month to examine the constitutionality of the law through which the center sought to provide a 10 percent quota for the economically weaker sections (EWS) of the society. It is noteworthy that the parliament, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for EWS reservation in admissions and government jobs. Since then, several petitions including one by Janhit Abhiyan, were filed in the apex court challenging the validity of the Constitutional amendment which allegedly is flouting the basic structure and spirit of the Constitution.
The bench, which included justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and JB Pardiwala approved the legal issues framed by Attorney General (AG) KK Venugopal, noting they broadly cover the spectrum of questions raised against the law through multiple petitions. “Whether the 103rd Constitution amendment Act can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria,” read the first issue. The second legal question was whether the constitutional amendment violates the basic spirit of the constitution by making provisions for reservation in admission to private unaided educational institutions. The Third issue to be adjudicated upon by the bench – is it unconstitutional to exclude the SEBCs/OBCs, and SCs/STs from the scope of EWS reservation? The Court together with the parties involved agreed that these three questions cover all the pending petitions and address the concerns of all. The regular hearing of the matter commenced on September 13 and the judgement is keenly awaited.
Although it’s a welcome move by the Hon’ble Supreme Court, there are many issues on reservations that need immediate redressal. The questions that need to be addressed are as follows: First, while on one hand the annual parental income has been made the sole basis in ascertaining the eligibility of other backward classes (creamy layer) for reservation, then why do both individual income and family income has been deciding factor for defining the eligibility of a candidate for reservation as economically weaker section? Second, why income from service groups other than Group A and Group B, should not be considered while assessing creamy layer for determining eligibility as OBCs? Third, why should the creamy layer be benefited by repeatedly raising the income limits for them? Fourth, by raising the income limit and letting the creamers be a part of the non-creamy layer doesn’t it deprive the real underprivileged of the benefits? Fifth, why agricultural income should not be included in the eligibility determination for reservation of Other Backward Classes? Sixth, why creamy layer norm is not extended to reservations, particularly to, Scheduled Castes and Scheduled Tribes like the Other Backward Classes? Why is the benefits of reservation for other backward classes, scheduled castes, and scheduled tribes are confined to a few selected castes only? Eighth, why is sub-categorization of other backward classes, scheduled castes, and scheduled tribes not carried out based on social, educational, and economic backwardness as is proposed by Justice Rohini Commission? Ninth, has caste-based reservation, not further engraved caste consciousness in the society? Tenth, why the future generations of those who have already availed of the benefits of the reservation should not be excluded so that the benefits could reach those who are deprived till date? Eleventh, has the ‘trickle-down theory’ failed in the context of reservation? Twelfth, why is the participation and representation of underprivileged classes extremely low in the system, despite the reservation policy? Thirteenth, Why all the posts of reserved categories are not filled till date? Fourteenth, Despite the water brimming in the river (reservation policies) why it is not reaching the fields (the less privileged)? Fifteenth, has the reservation system become synonymous to a blind person distributing ‘a crisp sweetmeat’ to his near and dear ones? Sixteenth, in this historic occasion of Azadi ka Amrit Mahotsav (75th year of independence), shouldn’t the impact, reach and achievements of present reservation system be assessed and reviwed comprehensively? Lastly, how can the caste-sensitive reservation policies fight caste consciousness?
‘Reservation’ happen to be one such sensitive issue that indulging in it involves a high risk of getting your fingers burned. That is why all the think tanks and sociologists-economists generally shy away from talking about it freely. Whoever dares to speak or write about reservation is generally encountered by besieging and troubles. Instead of indulging in positive dialogue to resolve issues, all-out alienation begins. Those involved are immediately labelled as casteists or Manuwadi. However, intellectuals must come forward and discuss reservation without being weary of the fanatics and the repercussions involved. There are two major reasons for the present reservation system not being able to achieve its targeted results – first, reservation has become more a matter of politics and vote bank than becoming a tool for socio-economic empowerment. Secondly, it has fallen victim to the hands of the privileged mentality of those at the top of the social, economic, and political pyramid. On the lines of ‘Brahmanism’ of upper castes, the last few decades have witnessed the emergence of the ‘Neo-Brahmanist’ class among the Dalit-Backward castes. The Brahminists and the Neo-Brahminists, consider all resources and facilities as their ‘privilege’. They do not want the oppressed class to rise in life, rather they consider them intruders encroaching upon their spaces. To have an axe to grind (selfish motive) under the guise of caste or category to which they belong, or of which they are the spokespersons, it has become their mindset to slay the rights of their ‘own people’ i.e. deprived and weaker sections. Thus, the expectation from a murderer to be a facilitator of justice is meaningless. It is also noteworthy that the ‘Malaimaar’ section of each class is the most vocal. This section alone controls the major forums, platforms, and bastions of expression. Whenever the discussion of including the poorest of poor and downtrodden in the purview of reservation starts, this section gives two arguments – first, ‘Reservation is not a poverty eradication program’, and second, getting a reservation for one generation cannot eradicate thousands of years of exploitation that these people have been subjected to. But it is worth mentioning here that if there is any socio-economic benefit due to reservation or the socio-economic hierarchy is improving owing to this, then even a small petty benefit should be allowed to reach the people who are deprived of it. Secondly, no one can deny the fact that poverty is not a lesser evil than caste stigma. Therefore, it is imperative to make provision for ‘non-creamy layer’ and ‘first generation’ in the reservation framework so that its benefits could reach the most oppressed and deprived sections, at the earliest. When candidates belonging to the first generation and non-creamy layer are not available, then the opportunity should be given to others in the same category (second generation and creamy layer). Also, if a single applicant fulfills the minimum qualifications, he or she should be appointed, and the game of None Found Suitable (NFS) should be banned.
The anomalies of the present reservation system are appalling. They should no longer be ignored; Otherwise, it would result in social unrest and disintegration. The biggest anomaly of the caste-based reservation is that it is empowering specific castes only. It’s time that the recommendations of the Rohini Commission are implemented immediately so that the Maha Dalit and Most Backward castes can also be empowered and brought into the mainstream. Along the same lines, the biggest inconsistency in the reservation for economically weaker sections (EWS) is that the entry level applicants are getting benefit of this provision (as the income and assets of the candidate are the basis of determining their eligibility); the vacancies at the higher level are lying vacant as experience is an essential requirement for filling them. For example, one can easily find applicants for the post of Assistant Professor in universities under EWS category; But applicants for the post of Associate Professor and Professor which requires a minimum experience of 8 and 10 years as Assistant Professor respectively, can not be found under the same category. Even if the candidate has the afore-mentioned experience, he/ she will no longer be able to seek benefit under this category as his/her income would surpass the income limit mentioned under the EWS criteria. Thus, the provision of one’s income limit and the prerequisite for experience are two contradicting conditions. Accordingly, all such experience-based seats (10 percent) have been lying vacant since the introduction of reservations for EWS. Due to this half-baked legislation, only 40 percent of the seats under the unreserved category are being filled for higher posts like that of Associate Professor and Professor. There is yet another incongruity in determining the eligibility for reservation of EWS, agricultural income has also been added to the gross income, and property (agricultural land, residential/commercial plots, etc.) has also been included, whereas neither agricultural income nor property is considered while ascertaining the eligibility of ‘creamy layer’ of Other Backward Classes.
In today’s post-modern and consumerist society, the primary basis of an individual’s respect and acceptability is his economic status. The market evaluates a person based on his purchasing power. Both society and the market are mostly money centric. Further, a just and reasonable initiative cannot be expected from political parties in this regard owing to their petty political calculations. Therefore, it’s high time that the Supreme Court take Suo Moto cognizance of all the discrepancies that exist in the prevailing reservation policy and review it thoroughly. Articles 330 and 332 of the constitution have the provision to assess the impact and outcome of the reservation. Undoubtedly, this will ensure social justice and economic equality as dreamt by Dr. Bhimrao Ambedkar and other constitution makers. This comprehensive review would ensure Antyodaya, the empowerment of even the last person in the row.
(The author is Dean, Students’ Welfare, Central University of Jammu.)
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