Open Forum

New Delhi, 18 December 2019

EBC Reservation

WORN OUT GRAMAPHONE RECORD

By Dr S.Saraswathi

(Former Director, ICSSR, New Delhi)

The poll-eve legislation of the 124th Constitutional Amendment in Article 15 and 16 in the Fundamental Rights providing for 10 per cent quota for economically weaker sections in the open category was passed by both Houses of Parliament within 48 hours! It has got Presidential assent too. Bitter political enemies of the BJP lent it support. Practical politics precludes opposition partly because of its timing except for the DMK nurtured by Dravidian politics clinging still to Reservation Policy as the one and only remedy for social backwardness.

Noteworthy is the voting figures -- 323 Ayes and only 3 Noes in the Lok Sabha, and 175 Ayes and 7 Noes in the Rajya Sabha. The Bill passed through both Houses so quickly makes it clear that the Houses function or don’t function on account of party animosities and not issue importance.

Most of the political parties are in favour of reservation for economically backward classes (EBC), and the Congress had even promised it in its 2014 election manifesto.  Gujarat State has already announced its decision to implement the new quota this month itself. The 10 per cent quota is over and above existing 49.5 per cent for SC, ST, and OBC and is granted to economically weaker sections in the general category.

We are now a reputed democratic nation for specialising in freebies and concessions as an easy path towards development in the opinion of receivers and an alternative to the hard way of developing human resources for the patrons. This path is more attractive to the recipients as it involves no extra labour on their part. We are supposed to be correcting centuries of past injustice and have to accept the method voted by majority without arguing.

The 10 per cent quota applies to all those who are not covered in existing Reservation and have a family income below Rs.8 lakh a year, or agricultural land below 5 acres. Those who have a house in above 1,000 sq. feet area, or a plot of above 100 sq. yard in a notified municipal area are not eligible.

In less than 24 hours after Parliament’s approval of reservation for the EBC, an NGO “Youth for Equality” filed a PIL in the Supreme Court seeking quashing of the legislation alleging that it violated the basic structure of the Constitution. This contention is based on the judgement of 1992 in the Indira Sawhney case.

In the mid-1980s, the BJP had conceded the merit in the concept of reservation for the poor among the forward communities. This was recalled in January 2003, when the Congress Government in Rajasthan moved a Resolution in the State Assembly recommending 14 per cent reservation for the poor among forward communities. As it would exceed the 50 per cent cap for reservation, it was sent to the Union Government for clearance.

The need for a Commission to identify the EBC and the means to accommodate the change in the Constitution was then raised. The proposal was dropped as Article 16(4) does not cover economically backward, and had to be specifically added. The ceiling of 50 per cent was also pointed out as an obstacle.

The two hindrances still remain intact. But, the change is now introduced as a Constitutional Amendment and not an executive order to answer queries regarding its constitutionality. The Constitution can be amended any number of times. The ceiling of 50 per cent is already relaxed in a number of cases and the proposed quota does not curtail that of SC, ST, and OBC. If at all, the objection can come from economically non-backward forward castes whose chances are further curtailed.

The predominant feeling of the Constituent Assembly, as recorded in the Mandal Commission Report states: “Special measures were required to remedy special inequalities of caste and community which tended to accentuate economic disparity among the groups”. So, the Commission concluded that, the description of backward classes in clause 4 of Article 15 should be similar to that in clause 1 of Article 340, which limits it to “socially and educationally backward classes”. This was the reason that the word “economically” did not find a place in clause 4 of Article 15 though several members pointed out that in the identification of socially and educationally backward classes, economic backwardness could not be ignored.

Mandal recommendations were validated by the Supreme Court in the Indira Sawhney Case in 1992. The Social Welfare Minister of the then Congress government, Sitaram Kesari, was not only in favour of reservation for SC, ST, and OBC, but also wanted to ensure that reservations should be equal among the economically backward.

The famous Judgement in Indira Sawhney Case, known as Mandal judgement, rejected the Union Government’s proposal for 10 per cent reservation for the economically backward and placed a cap of 50 per cent for the total reserved quota, which should not be exceeded except in some extraordinary situation.

It is this judgement that is stressed by opponents of the present amendment. The “quota regime” enunciated by the Supreme Court is a blend of the twin principles of “positive discrimination” and “right to equality”. But, real politics is inclined to abuse the reservation concept by making it permanent as a “basic structure” of the Constitution.

No law, no rule, and no judgement is made for ever. When conditions change, a democratic government has to change. Change is the road to progress. Delving  into  the debates of the  Constituent Assembly or into earlier judgments are for our understanding of the thinking in the past as it has evolved over the years so as to assess better current conditions and introduce necessary amendments and not to tighten the chain ourselves in further knots.

The sharpest thorn in the Reservation Policy is the 50 per cent ceiling, which is sought to be invoked now to block recognition of EBC. A Constitution Bench in 2006 ruled that 50 per cent limit was necessary to safeguard “equality” which is part of the basic structure of the Constitution. 

Tamil Nadu had increased the reserved quota to 69 per cent by legislation, and managed to put it in the Ninth Schedule of the Constitution which is immune from judicial scrutiny. In this matter, States are over-willing to help one another so that their own liberal Reservation Policy will remain secure.

MGR acknowledged the presence of “have-nots” in all categories including the “forward”. But, the DMK suggested setting apart some seats in the general category for the poor in all categories.  MGR’s suggestion for introducing income criteria in determining backward classes had no political support. The PMK in Tamil Nadu has long been demanding reservation for poor students irrespective of caste and community in private schools located in their areas.

In 2003, The NDA government made a move to introduce a separate quota for the economically backward among the “forward” castes. It did not succeed. Are we then playing a worn out gramophone record or doing serious business?---INFA

(Copyright, India News & Feature Alliance)