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Above: Demonstrators at a Jat Aarakshan Adhikar rally demanding reservation for the community

The centre’s move to have 10 percent quota for the econo­mically poor over the existing 49.5 percent for SCs, STs and OBCs may be a poll gimmick, but will it stand legal scrutiny?

By Puneet Nicholas Yadav

The fear of electoral reverses is the most potent tool that determines the actions of a government—or its Opposition. Nowhere is this more apparent than in the unfortunate charade that played out in both Houses of Parliament on January 8 and 9 when the Constitution (124th Amendment) Bill was passed, abetted by a rare unanimity between the Treasury and Opposition benches.

The passage of the Bill paves the way for Prime Minister Narendra Modi’s government to introduce a 10 percent reservation over the existing 49.5 percent reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes for “the economically weaker sections of society in higher educational institutions, including private institutions” and in government jobs. The amendment seeks to negate the cap of 50 percent on reservations that was set by the Supreme Court through various judgments, notably in the Indra Sawhney case, and also the constitutional and legal obligation of not providing reservations purely on the basis of economic backwardness.

As Articles 15 and 16—which now stand amended—are not subject to the requirements of constitutional amendments laid out in Article 368 (2) (ratification by at least half of the state legislatures following passage by Parliament), the government is now free to issue an executive order granting the new quota. Whether the amendments, specifically meant to benefit the upper caste and electorally significant communities such as the Thakurs, Jats, Marathas and Patels, is legally sustainable is a question that is now being debated.

Expectedly, a day after the Bill was passed by the Rajya Sabha, NGO Youth for Equality moved a plea in the Supreme Court challenging the amendments to Article 15 and 16. It stated that the amendment violates “one or the other basic feature of the Constitution, and hence such a manifest and obvious violation of the Constitution ought to be prevented”.

So what are the political compulsions that forced the Modi government and the Opposition to join hands for the passage of the Bill? The Bill comes weeks after the BJP was voted out in MP, Chhattisgarh and Rajasthan in favour of the Congress. The poll outcomes show that the saffron tide had receded in urban areas where the opponents of the existing reservation policy—upper castes—constitute a formidable vote base.

The push for additional reservation also coincides with Congress President Rahul Gandhi’s high-pitched diatribe against the Modi sarkar for perpetuating alarming rates of unemployment and failing to deliver on its 2014 poll promise of generating 10 million jobs annually. It also comes towards the fag end of its term which has, since 2014, seen agitations for reservations across states by the forward castes such as the Thakurs, Jats and Patels. The move is, thus, a clear sign of desperation of the BJP, shoddily presented in the garb of social justice.

For the BJP, the electoral benefits of the move are not hard to imagine. Not surprisingly, with everyone in his government in self-congratulatory mood, the prime minister too did his usual chest-thumping, terming the Bill “a victory for social justice” which “ensures a wider canvas for our Yuva Shakti to showcase their prowess and contribute towards India’s transformation”.

The Opposition was simply given a fait accompli by Modi—resisting the Bill’s passage would have meant antagonising the over 15 percent upper caste vote and giving the BJP a chance to claim that its political rivals criticise the government over unemployment but oppose a “historic act” that could rectify the malaise.

In both Houses of Parliament, with the exception of a handful of negative votes, the Bill sailed through with the required two-thirds majority of members present and voting to enable a constitutional amendment. The negative votes included three in the Lok Sabha (AIMIM chief Asaduddin Owaisi and IUML MPs ET Mohammed Basheer and P Kunhalikutty), seven in the Rajya Sabha (MPs from the RJD, DMK and IUML), and some conveniently timed abstentions and walk-outs. The Opposi­tion benches hemmed and hawed, attacking the Modi government for “yet another jumla”, but voted in favour of a Bill they otherwise opposed “because it was in the interest of the society”.

Congress MP Kapil Sibal pointed out three foreseeable hurdles before the new reservation is implemented: “First is the complete non-application of mind on the part of the government in introducing this Bill; second, the constitutionality of this Bill; third, the implementation of this Bill.” Sibal said that the Bill violates the top court’s Indra Sawhney verdict as also the basic structure doctrine enumerated in the Kesavananda Bharati judgment. Nonetheless, he voted in favour of the Bill.

Union law minister Ravi Shankar Prasad disagreed with Sibal’s objections, stating that the “basic structure of the Constitution has nothing to do with reservations… In this Bill we are adding a clause to Article 15 where reservation will be given in educational institutions and employment and under Article 16 to public employment. Our reservation will not touch the existing reservation for SCs, STs and OBCs”. He also dismissed the Opposition’s contention that the Bill violates the Indra Sawhney verdict.

Though the Bill may have sailed through, there is a major legal hurdle ahead. The majority verdict in Indra Sawhney, passed by a nine-judge Cons­ti­tution Bench headed by then Chief Justice MN Venkatachaliah, had categorically said: “…Constitutional philosophy being against proportional equality the principle of balancing equality or­dains reservation, of any manner, not to exceed 50 per cent.” It had added: “A backward class cannot be determined only and exclusively with reference to economic criterion.”

Despite this, several states have tried to breach the 50 percent cap, with Tamil Nadu even going to the extent of having a quota of 69 percent. But none of these have stood legal scrutiny. Tamil Nadu’s additional 19 percent quota was legally upheld, but only after it increased the same number of seats in the unreserved category.

Any legal challenge to the 50 percent cap on reservations will have to be adjudicated by a bench of no less than 11 judges. Such a battle would clearly take more than five months for the Supreme Court to resolve, by which time the Modi government’s time in office would be over. If the legal road ahead is rocky, the practical challenges in its implementation and the social turmoil it would unleash would be no less.

Dalit scholar and Osmania University professor Kancha Ilaiah Shepherd told India Legal: “Those who are now lobbying for reservation for the savarna (upper caste) people are the same people who until yesterday were claiming that the quota system has killed merit. It is their own argument that they are now trying to negate. Secondly, I believe that if the government has decided to put the 50 percent cap behind, then it must first increase the quota for the bahujans (Dalits and backwards) in proportion to their population.”

Union ministers Anupriya Patel and Ramdas Athawale have already demanded that the centre make public the findings of the Socio-Economic Caste Census (SECC) 2011. Both, along with other Opposition leaders, believe that the proportional representation of SCs, STs and OBCs will have to be significantly hiked if the caste census data is revealed.

Deciphering who are the economically backward paints an even more problematic situation. If reports are to be believed, the government considers the following as economically poor: a family with an annual income of less than Rs 8 lakh, or with a residence of less than 1,000 square feet area or agricultural land holding of less than five hectares or a plot of less than 100 yards in notified municipal areas or 200 yards in non-notified municipal areas.

This criteria, say Opposition leaders, is laughable. “First, where is the empirical data to ascertain who all qualify under these categories? Second, if one takes 2011-12 as the base year then India’s net per capita annual income, at constant prices, is just Rs 80,000-85,000, what is the sense in declaring Rs 8 lakh annual income as the yardstick for economic backwardness? Also, real estate prices differ from place to place—a 1,000-square-foot residence in south Delhi or south Mumbai is worth crores. How is its owner poor?” asked RJD MP Manoj Jha.

But, while the government has promised new reservation in jobs, where are the employment opportunities? According to a report by newslaundry.com: “If we take a look at the Modi years, around 1.78 lakh jobs have been added at the central government level (since 2014). This works out to around 45,000 jobs a year, on an average. If a reservation of 10 percent would have been in place for the economically weaker sections of the society, it would have added 4,500 jobs per year.” This, when job creation in public sector enterprises has been on a steady decline over the past four and a half years while over 10 million youth are being added to the workforce annually.

The recent “Unemployment Rate in India” report by the Centre for Monitoring Indian Economy shows that the unemployment rate has been rising, peaking at a 27-month high of 7.38 percent as of December 2018. In addition, the number of employed Indians fell by 10.9 million over the last 12 months as salaried employees lost their jobs due to a combination of economic factors.

So, while Modi can promise 10 percent new reservation, is he really generating enough jobs to accommodate them? A WhatsApp joke sums it up best: “This 10 per cent reservation for economically backward people is like a lollypop which has a glittery cover and a stick but no toffee inside.”

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