Herald View: The reservations minefield

With jobs in government dwindling steadily and the government’s footprint in higher education also receding, reservations have lost some of their potential as an instrument of affirmative action. Despite that inescapable reality, the issue remains highly emotive and, by that token, a political hot potato. The ongoing hearing in the Supreme Court on the constitutional validity of a 10 per cent quota for Economically Weaker Sections (EWS) in the ‘general’ category is no exception. The 10 per cent EWS quota was introduced via the 103rd Constitutional Amendment Act, passed in January 2019 ahead of the last Lok Sabha election. It was passed in great haste, without the kind of parliamentary scrutiny, discussion or debate that might have been de rigueur in days preceding ‘Achhe Din’ and ‘Amrit Kaal’. But it’s not in the Supreme Court’s remit to get into parliamentary niceties.

Parliamentary decorum aside, the 10 per cent quota was likely pulled out of a certain magician-politician’s hat—there was no survey or data or anything resembling evidence to back that number nor any explanation for why the quota was fixed at 10 per cent and not lower or higher. Likewise, no data nor explanation for why the eligibility criterion was set at household annual income lower than Rs 8 lakh or Rs 66,000 a month. The government just brushed aside objections when it was pointed out that 96 per cent Indians earned less than Rs 25,000 a month, and the Supreme Court didn’t grant a stay, even after the petitioners pointed out that the Rs 8 lakh ceiling would make 96 per cent of the ‘forward’ or upper castes eligible for the quota. Some critics tried to put it another way in the hope it might ping in political brains: the policy, they said, would effectively provide 10 per cent reservation for five per cent of the people. While the five-judge constitution bench of the Supreme Court has now asked for “wider data” in support of the scheme, said data could only be retrofitted because those quotas didn’t grow out of any studies to the best of our knowledge.

In 1979, the Mandal Commission recommended 27 per cent reservation for Other Backward Classes (OBCs), on the basis of surveys that had concluded that OBCs comprise 52 per cent of India’s population. The Attorney General informed the Supreme Court on September 21 that India has 58 million ‘forward caste’ people living below the poverty line and that they comprise roughly 19 per cent of the forward caste population. By that reckoning, India’s forward caste population is over 260 million, which seems a high overestimate. The government’s reluctance to conduct a caste census is not without reason, it seems. The economic criteria for the new quotas are even more dubious. The petitioners have argued that quotas were not designed to reduce poverty, that reservations were granted on the basis of social and educational backwardness. If the Supreme Court were to uphold the 103rd Constitutional Amendment Act, 2019, it would, in effect, have overturned the Indra Sawhney judgment, they say. The Indra Sawhney judgment had held that reservations were meant to end historical injustices based on caste; they were meant to allow socially and educationally backward communities to overcome those odds and access professions and jobs historically out of their reach.

Can the government make special provisions for the forward castes and a sprinkling of mid-rung castes, such as the Marathas, Patels, Jats and Kapus? The EWS quota debars OBCs, SCs and STs even if they are poor. The petitioners have argued that while there are poor among the forward castes, their poverty is not due to their caste or a traditional social disadvantage. On the other hand, SCs, STs and OBCs have suffered historically from their low social standing and poor access to education, which contributed to their economic backwardness. Their low social standing, in turn, stems from their caste and caste-based occupation. The government labours the point that the reserved categories still enjoy 50 per cent reservation and that the 10 per cent EWS quota has been carved out of the ‘general’ category; it argues, on that basis, that those within the ambit of the 50 per cent reservations have no reason to complain. The fallacy lies in the underlying assumption that the general category is for ‘forward castes’, in not acknowledging that ‘general’ is just an unreserved category for everyone.