• Why Parliament passing 10% quota Bill against ‘economic backwardness’ defeats the constitutional mandate of reservation

    Ajita Sharma

    January 11, 2019

    Both the Houses of Parliament have passed the current Minster of Social Justice and Empowerment, Dr Thaawarchand Gehlot’s Bill titled ‘The Constitution (One Hundred and Twenty Fourth Amendment) Bill, 2019’The Bill sought to amend Articles 15 and 16 of the Constitution to provide a maximum of 10% reservation in public employment and higher educational institutions, including private (aided or unaided) institutions, for the economically backward sections in the general category people, irrespective of their religion.

    The object is to provide reservations in “higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged”, with a view to “fulfil the mandate of Article 46 of the Constitution”. In the Bill passed, the proposed reservation will be over and above the existing 50% cap enjoyed by the Scheduled Castes, Scheduled Tribes and Other Backward Classes. Further, the criteria of determining the “economically weaker sections” will be identified from time to time on the “basis of family income and other indicators of economic disadvantage”.

    Origin of reservations

    In the history of reservations in India, reservations have been given to the SCs, STs and OBCs based only on their “social backwardness”. Reservations extend back to the period of British rule, when it was codified in law only for the “depressed classes” who were socially disadvantaged. These depressed classes were then identified as the “Scheduled Castes”, “Scheduled Tribes” and “Other Backward Classes”.

    The term “Scheduled Castes” was given to those who were called “untouchables” because of their lowest position in the caste hierarchy in the Hindu Varna System; while “Scheduled Tribes” was ascribed to aboriginal groups of particular geographical areas who were excluded from the mainstream of the Indian society. Moreover, the term “Other Backward Classes” was given to the other lower caste groups who were not “untouchables”.

    But, it was not the “caste” or “tribe” solely which was the determinative factor of the said reserved categories; it was also their inter-generational vulnerability assigned at birth and proneness to political exploitation due to their position in the caste system by the upper castes which led to caste stigmas, general lack of access to resources, sustained financial incapacity and no sharing in power to distribute the resources.

    Recognising systemic nature of caste-based disadvantages

    In light of the disadvantages perpetuated in India by the existence of caste system, “reservations” was given a special status reserved only for the SCs, STs and OBCs in the Constitution. For other vulnerabilities such as religion, race, place of birth, class etc., which resulted in social and educational backwardness, the Constitution provided for affirmative action measures. Therefore, reservations solely on the basis of “economic disadvantage” have been held to be not valid.

    This was also held in the landmark judgment of the Supreme Court in Indra Sawhney v. Union of India, (1992) 2 Supp SCC 217. Therefore, if this Constitution amendment takes place, the basis of Indra Sawhney will be removed, and it will no longer be possible to argue that reservations in public services and educational institutes are unconstitutional on economic grounds. Hence, the issue goes far beyond the decision to give reservations on economic grounds, The central question lies in discussing what is the purpose of reservation. This debate on the purpose of reservations, however, is not settled by either the existing law or the judicial interpretations.

    Purpose of Reservation

    Dr B R Ambedkar in the Constituent Assembly debates had emphasised that “there shall be reservations in favour of certain communities which have not so far had a ‘proper look-in’ into so to say the administration”. The Supreme court has, however, not reserved its definitive opinion on this issue.

    In Indra Sawhney, Justices Sawant and Sahai, in their respective opinions, have stated that reservation is not aimed at economic upliftment or alleviation of poverty; rather it is designed to give due share in the State power, who have remained out of it mainly on account of their social, and therefore, educational and economic backwardness.

    Justice Thommen has stated that reservation is one of the measures to remedy the continuing evil effects of prior inequities stemming from discriminatory practicesagainst various classes of people which have resulted in their social, educational and economic backwardness. Justice Pandian has stated that the policy of reservations is to off-set the inequality and remove the manifest imbalance, the victims of which for bygone generations lag far behind and demand equality by special preferences and their strategies. He stated that a comprehensive methodological approach encompassing jurisprudential, comparative, historical and anthropological conditions is necessary.

    Whereas, Professor Marc Galanter calls reservation as “compensatory discrimination” and its object “to re-distribute resources and opportunities to those who enjoy the fewest advantages”.

    Despite the unsettled debate, the Bill was passed by the Lok Sabha with hardly any discussion to lay out a clear object and the purpose of reservations in general.

    Reservation interrogates & addresses the origin of ‘economic disadvantage’

    Consequently, if the object of reservations is not aimed at economic upliftment or poverty alleviation, this Bill should not have been passed as it aims to remove “financial incapacity” due to “economic disadvantage”. Moreover, if the object is to give due share in State power, the question then arises whether there is any co-relation to being economically disadvantaged which may hamper representation of poor people in positions of power, and if reservations is the best possible way to improve adequate representation.

    My answer is that while the “economic criteria” can be alleviated with the betterment of one’s economic status, vulnerabilities such as caste stigma remain even if one attains the highest positions of power. The Government, instead of choosing reservations as a tool to alleviate financial incapacity, can instead focus on affirmative action programmes such as skill building, increase funding for scholarships on a need basis, etc. and seriously tackle the issue of unemployment in the country, which will actually enable people to come out of poverty.

    What about identity-based disadvantages?

    Further, if the purpose of reservation is to correct the historical disadvantage of various classes of people, one can only wonder the Government’s choice and real justification of tackling the issue of sole economic disadvantage first when there is enough historical disadvantage verified in India for women, LGBTQ+, religious minorities, etc., which have both identity-based historical disadvantage, resulting in massive economic exclusions and disadvantages.

    One may try to argue that this Bill will now cover people from all the vulnerabilities and that my argument is of no use, but can all vulnerabilities be tackled only in one manner i.e. by giving reservations generally? Is the government only capable of giving one solution to all problems of different nature? This move is really a quick-fix to all problems unfortunately. What has the government done to remove homophobia, xenophobia, classism, communalism etc. in the country?

    Show us the data

    Last but not the least, if the purpose of reservation is to re-distribute the resources and opportunities to those enjoy the fewest advantages, the financially incapable and economically disadvantaged will certainly fall within this criteria. Yet, the question — of whether the sole economic criteria is sufficient — remains. Both the Houses of Parliament think that the sole economic criteria is sufficient, but have given no statistics and no real justification to back up their answer to choose reservations over other means of achieving substantive equality in terms of equality of opportunity to protect them from social injustice and all forms of exploitation.

    Unwarranted political gimmick

    Clearly, the debate of reservations in the country is an open-ended debate with loose strings for the political parties to manipulate and exploit the disadvantaged for last minute vote swings. It is often said that too much hope on reservations is also not a good idea. One needs to revisit and recalculate how has reservation for the reserved category benefitted them until now since the Independence of India. While there are meagre examples of slow growth in living conditions, statistics indicate that agriculture is still the primary source of earning for the SCs, STs and OBCs, and almost all the jobs involving hard and hazardous physical labour, including banned and life-threatening jobs like manual scavenging, are still predominantly performed by them till date.

    However, this can also be understood as a condition of caste-based discrimination that simply attaining an economically advantageous position in society has not been and will not be able to eradicate. Caste-based discrimination and resultant socioeconomic disadvantage is therefore more fundamental a problem than simple economic disadvantage, and it’s the former that reservation has been constitutionally mandated to address. Therefore, in addition to reservation in education and employment to remedy the historical disadvantage, massive and simultaneous social and political awareness programmes to recondition the Indian society to stop discriminating against a lot of people because of their “castes” is necessary.

    Till the discrimination doesn’t disappear, one cannot say that reservation has adequately tackled the problem of caste system in India. Economic disadvantage is usually a consequence of a vulnerability, and thus it is that vulnerability which needs to be tackled for effective poverty alleviation, which is exactly what the drafters of the Indian Constitution had understood to be the purpose of reservation.

    Read the Constitution (One Hundred and Twenty Fourth Amendment) Bill, 2019 here.


    First published in The Leaflet.

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