Can the reservations given to historically oppressed castes and tribes breach the 50 per cent limit? This question came for intense scrutiny in the Supreme Court hearing on Maharashtra government’s act, giving reservations to Marathas in jobs and education.
The state of Maharashtra, before the new act, mandated a 52 per cent quota in public services and 50 per cent in educational institutions for Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). The new Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2018 gives 16 per cent reservation to Marathas in jobs as well as education, taking these figures to 68 per cent and 66 per cent respectively, way above the 50 per cent ceiling set by the nine-judge bench in Indra Sawhney vs Union of India judgment of 1992.
The judges in the Indra Sawhney case had observed, “Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits—and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts.”
The bench had argued that Clause (4) in Article 16 was a “special” provision and hence the quantum of seats available through open competition could not be less than the seats reserved through this special provision. The judges had also argued that Article 16(4) speaks of adequate representation and not proportionate representation.
It is easier to dismiss the latter point. Article 16(4) reads:
“Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
It is clear here that the clause only speaks of how to identify a backward class for the purpose of reservation (backward class “not adequately represented”) and not if the quantum of reservation should be “adequate” or “proportionate”. There is nothing in the Constitution that says that reservations cannot be proportionate, which is why reservations for the SCs and the STs have generally tended to be proportionate to their population figures.
Unequal Representation to OBCs
The reservations in favour of the OBCs, on the other hand, have remained much less than their population share. This is mainly due to a judiciary striking down many acts pertaining to OBCs, than lack of political will. This can best be illustrated by looking at M R Balaji vs State of Mysore (1962) which famously said that reservations should not cross 50 per cent limit and that “reservation made under Art. 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution.”
The Supreme Court judges presiding over this case had also refused to accept caste as the sole basis to identify backward classes.
The First Backward Classes Commission, known as Kalelkar Commission after its chairperson, had recommended 70 per cent reservation for the OBCs in educational institutions. The Second Backward Classes Commission, the Mandal Commission, had recommended only 27 per cent reservation in both education and jobs, but not because it wasn’t in favour of a proportionate quota but because it didn’t want the OBC reservations to get into any trouble with the judiciary. It is worth citing the related paragraph in full.
“The population of OBCs, both Hindu and non-Hindu, is around 52 per cent of the total population of India. Accordingly, 52 per cent of all posts under the Central Government should be reserved for them. But this provision may go against the law laid down in a number of Supreme Court judgments wherein it has been held that the total quantum of reservation under Articles 15(4) and 16(4) of the Constitution should be below 50%. In view of this, the proposed reservation for OBCs would have to be pegged at a figure which, when added to 22.5% for SCs and STs, remains below 50%. In view of this legal constraint, the Commission is obliged to recommend a reservation of 27% only, even though their population is almost twice this figure.”
I am sure the commission members had M R Balaji in the back of their mind when they wrote these lines.
It is also worth noting another crucial point that the Mandal Commission makes. It says that a few thousand government jobs to OBCs every year aren’t going to make them forward but it is important to make them feel like they are a part of the governance.
The Dominance of Upper Castes
The principle of equality should not be turned into an abstraction. When the government sets down a certain percentage of seats for reserved categories, it doesn’t immediately change the composition of state institutions.
According to a recent report in The Hindu, Indian Institute of Management (IIM) Calcutta, which was set up in 1961, has no SC or ST faculty and has only two OBC faculty members. Of the other first-generation IIMs, Lucknow has less than 5 per cent faculty from reserved categories, while Kozhikode has less than 10 per cent.
IIMs may seem like an extreme case but they certainly aren’t the outliers. Many institutions and departments remain dominated by upper castes—who number less than a quarter of the population—despite the decades of reservations. Does this not violate the principle of equality? What about the private enterprises and other domains where reservations do not apply at all? Should one be concerned about equality only when the opportunities available to upper castes are threatened, that too more in theory than practice? Or should one be more concerned about substantive equality that takes into account all sections of society?
As the Mandal Commission posited, historically disadvantaged classes only want to belong to the state and be part of its governance. The affirmative action programme was not meant to be a poverty alleviation programme nor a panacea for all the disadvantages faced by the lower castes. However, the hold of upper castes not just in the social and economic sphere but also in the various institutions of state remains as entrenched as ever. The judiciary itself is a very good example of this. According to the analysis of George Gadbois, until 1989, Brahmins held 42.9 per cent of the judgeships, non-Brahmin “forward” castes constituted 49.4 per cent while OBCs just 5.2 per cent and the Dalit and Adivasi communities held just 2.6 per cent and 0.0 per cent of judgeships respectively. These numbers haven’t really changed much since then.
If the elected governments wish to change the composition of institutions in their respective states, should the courts take objection to this? There is no provision in the Constitution that says that reservations cannot cross a certain threshold. The courts are definitely within their rights to interpret Article 16(1) with utmost theoretical rigour but they should be careful that they don’t turn it into an abstraction.
One can pay heed to State of Kerala vs N M Thomas (1975), where the judgment says: “In order to provide equality of opportunity to all citizens of our country, every class of citizens must have a sense of equal participation in building up an egalitarian society, where there is peace and plenty, where there is complete economic freedom and there is no pestilence or poverty, no discrimination and oppression, where there is equal opportunity to education, to work, to earn their livelihood so that the goal of social justice is achieved.”
Read all the Latest News, Breaking News and Coronavirus News here. Follow us on Facebook, Twitter and Telegram.
Comments
0 comment