10% quota afoul of the Constitution

Ironically, reservation politics, which has remained so intensely unpopular in the ideological scheme of the BJP, got a new lease of life with the Narendra Modi government’s decision to grant 10% reservation for economically backward sections in general category. Prudently, political parties of all orientations supported the decision to avoid the wrath of the higher castes in the coming Lok Sabha election.

In this new context, first, we argue that although the economic criterion is well-intentioned, the idea of affirmative action will lose whatever coherence and normative appeal it may once have had. Second, it will also reopen the floodgate of reservation demands for many other communities on the ground of poor economic condition, for which the present public sector is not enough to serve the cause. Third, the rationale of the present government appeared to be too flimsy and poorly tailored to the relevant social facts to satisfy our constitutional standard. Be that as it may, the question we address here is whether such a law would be constitutional or not. In our considered view, the answer is no.

In a multiple undulating society like ours, accomplishing the objective of social justice as enshrined in the Constitution is a difficult political task. Constitutional justice to the backward classes interrogates the Indian State and society. The Constitution makes the State the trustee to preserve, protect, defend and uplift the backward classes within the confines of the Constitution.

The recent constitutional amendment empowering governments to provide 10% quota to economically backward sections in the general category (which will also cover those from the Muslim, Sikh, Christian, Buddhist and other minority communities) will not only destabilise the binding mandate of the Constitution but also dilute the ratio of the nine-judge bench in Indira Sawhney case.

Introducing temporal factors such as family income (an annual salary of less than Rs 8 lakh per year and possess less than five acres of land), which can be distorted by governments in power, as a basis for affirmative action and treating those essentially equal in status as being unequal is unquestionably against the basic structure of the Constitution. Reservation is not a poverty alleviation programme but is more in the nature of social justice to uplift communities that have not had access to education or employment for centuries.

Reservation of 10% of the vacancies among open competition candidates on the basis of income/property-holding means exclusion of those above the demarcating line from those 10% seats. It may not be acceptable to exclude a citizen from being considered for appointment to an office under the State solely on the basis of his income or property-holding. Since the employment under the State is really conceived to serve the people, no such block can be created. Any such bar would be inconsistent with the guarantee of equal opportunity guaranteed by Clause (1) of Article 16. On this ground alone, the proposed Constitutional amendment, which seeks to amend Article 15 and 16 of the Constitution, would fall flat.

A similar but unsuccessful attempt was made by the Narasimha Rao government in 1991. This was challenged and the Mandal case, along with other important issues, framed the question “whether the reservation of 10% of the posts in favour of ‘other economically backward sections of the people who are not covered by any of the existing schemes of reservations’ made by the Office Memorandum dated 25.9.1991 permissible under Article 16?

Even then the government did not disclose the criteria to determine it, but it was obvious that the basis would either be the income of a person and/or the extent of property held by him. It was also not made clear whether the impugned Memorandum would come under Clause (4) or Clause (1) of Article 16. Hence, the majority found that this classification amongst a category outside Clause (4) of Article 16 is not and cannot be related to Clause (4) of Article 16. If at all, it is relatable to Clause (1), even then, the Supreme Court found it difficult to sustain it. The Memorandum was declared constitutionally impermissible.

Political mileage

Though, it has passed the legislative test, the constitutional amendment will have to go through judicial scrutiny, too. In this scenario, it is only the logic of political dividends that lends support to such hasty decisions. First, the BJP may have the strategy of exposing other parties in the eyes of general category voters. Second, such a decision may widen the support base of the party across India, including in the North-East and South India. Third, it may polarise not only the upper caste votes but also create a political conundrum for other parties, including Congress, which had made a similar attempt in the past.

Nevertheless, such calculations may fail if the majority of the non-general category voters mobilised behind non-BJP political parties while viewing the general category reservation as an attempt to dilute the existing scheme of reservation.

The political executive, owing to the deterioration of the electoral process, will continue to create layers of backward castes, religions and racial groups where even 90% quota will not be adequate. The government, in addition, should encourage and help these communities by giving free and quality education.

Giving reservation based on economic criteria will not only create disharmony and frustration amongst the people who are not benefited by the reservation but it also may give rise to social tension, which would prove disastrous to the unity and integrity of the nation and would seriously affect the efficiency of the nation as a whole.

(Dr Alam is Director, Centre for the Study of Social Exclusion and Inclusive Policy, Maulana Azad National Urdu University, Hyderabad; Dr Singh is Registrar, National Law University, Odisha (NLUO), Cuttack