It is not for the first time in the annals of positive discrimination in India that an economic category has been created for the purpose of reservations. In 1991, the Congress government proposed 10% reservations for the poor among the upper castes, ie, ‘economically backward sections’. The move was aimed at assuaging the upper castes who launched a nationwide agitation against the implementation of Mandal Commission recommendations for the Other Backward Class (OBCs).
In 1992, the Supreme Court through its landmark judgment in Indra Sawhney vs Union of India (better known as Mandal Commission case) struck down the 10% reservation for economically backward sections holding that a backward class of citizens cannot be identified only and exclusively with reference to economic criteria. Indra Sawhney continues to be the most influential judicial pronouncement with respect to compensatory discrimination policies – despite the post-Mandal constitutional amendments that are designed to sidestep the verdict.
The NDA government through the Constitution (103rd Amendment) Act, 2019, seeks to provide 10% reservation for the poor or ‘economically weaker sections’ (EWS) among the general category in both education and employment opportunities. The government brought about a constitutional amendment to circumvent the judicial review of the Amendment. In the Supreme Court, the government contended that the conclusions drawn in Indra Sawhney are inapplicable to the present case as the Mandal verdict was delivered while determining the constitutional validity of an executive order of 1990 providing reservations for the backward class of citizens. It further submitted that the present challenge, however, is related to the validity of a constitutional amendment whereby Articles 15(6) and 6(6) were inserted.
But it needs to be stressed here that even a constitutional amendment is not beyond judicial scrutiny since such an amendment can be invalidated if it goes against the ‘basic structure’ of the Constitution. In this context, the Central government’s contention is that the impugned Amendment merely affects or impinges upon an Article embodying a feature that is part of the basic structure of the Constitution; hence the ground is not sufficient to declare an Amendment unconstitutional and the impugned Amendment does not violate the ‘basic structure’ of the doctrine.
A Major Departure
The 103rd Amendment marks a clear deviation from the established constitutional practices by creating a category based exclusively on economic criteria. Judicial pronouncements have time and again showed that only three categories of citizens are eligible for reservations: Scheduled Castes (SCs), Scheduled Tribes (STs), and OBCs. The judiciary has also upheld that caste-based reservations are in line with the spirit of the Constitution. Economic criteria are used and applied only with reference to reserved castes to determine their eligibility or otherwise through the concept of creamy layer and not to provide reservations in the first place. When it comes to reservations or other ‘special provisions’, the Constitution refers only to three categories – SCs, STs and OBCs or ‘Socially and Educationally Backward Classes.’
Positive discrimination in favour of the three categories is held as constitutionally valid on three primary grounds: (1) historical disadvantage and discrimination (2) low status in the traditional caste hierarchy, and (3) the resultant deprivation of or under-representation in education and employment opportunities. Going by these criteria, the upper castes – or any economic category or section other than the reserved categories – would not qualify for reservation.
Lack of Due Process
With respect to the contentious reservational social segments, such as the OBCs, governments at the Centre appointed commissions to study the socio-economic and demographic status of BCs prior to the implementation of their recommendations. Accordingly, the First Backward Classes Commission (headed by Kaka Kalelkar) was appointed in 1953. But no action was taken by the Centre on its recommendations. The Second Backward Classes Commission (better known as the Mandal Commission after its chairman) was constituted in 1979. Based on the Mandal Commission findings and recommendations, the Union government announced 27% reservations for the OBCs; the decision was upheld by the Supreme Court.
The impugned 103rd Constitutional Amendment, however, is not based on evidence; precedents in this regard demonstrate that such an important policy decision has to be corroborated by empirical evidence or reliable data that, inter alia, estimates the population of the EWS and shows that they are deprived of or under-represented in educational and employment opportunities on account of their economic status. In other words, the Centre needs to demonstrate that the new category is economically weaker and it is under-represented in employment and education.
Elusive Economic Status
India continues to be a predominantly caste-based society. We have not reached a stage where one’s class determines one’s life chances. Caste identity is permanent while economic status can vary. This is why reservations in India are based on caste and economic yardsticks are used only to remove the creamy layer from the purview of reservations.
Historically, discrimination has been caste-based; hence the judiciary has upheld caste-based quotas. In the context of positive discrimination, the Constitutions does not use the word ‘caste’, rather it uses the word ‘class’. The apex court has stated that caste is a relevant and dominant yardstick in defining class. In the Indian context, it is social backwardness that has resulted in educational and economic backwardness.
A Misnomer Category
It is a misnomer to call the newly-created category as ‘economically weaker’ since the creamy layer criteria are to be used to identify it. The monthly income cut-off works out to almost Rs 67,000. The cut-off is infinitely higher than the metrics that are employed to identify the poor and the economically backward/weaker sections. The general category has been the prime beneficiary of the economic reforms and high growth rates. Evidence shows that the general category makes up around 25% of the population. Upper castes are already over-represented in education and employment; their disproportionate representation is more visible in the private sector.
In contrast to economic status, social and educational characteristics are relatively easy to ascertain. Moreover, economic attributes fluctuate and economic status can be manipulated with ease. The Centre has created an EWS from the general category which has been hitherto excluded from reservations – this goes against the spirit of Articles 15 and 16 of the Constitution.
Reservation is essentially a compensatory measure so that the historically disadvantaged and the deprived sections can be brought to the level of the unreserved category. But such ‘compensation’ remains unjustified in the case of the general category. The Central government also needs to show that an ‘extraordinary situation’ prevails for providing reservations in excess of the 50% ceiling prescribed by the Supreme Court. And whether such a situation prevails is anybody’s guess. Ergo, the impugned amendment, in sum, tantamounts to turning the reservation policy on its head.
(The author is a social scientist and director, Independent Consulting in Governance & Capacity, Hyderabad)