The Right reservation
Ever since our country announced its arrival as an independent nation-state, one cause of grave concern has prevailed across discussions – from tea stalls to Parliament, everyone has opined on the delicate matter of reservations. There is no denying that 'Aarakshan' is a critical subject. Years of atrocities and subjugation of backward classes/castes across spheres of civil society laid the bedrock for the crude but visionary provision of reservations. In India, critically, reservation runs right from seats in legislation to government jobs and education. Article 14 of the Constitution asserts "equality before the law or the equal protection of the laws within the territory of India" and thereby, every effort has been made to live up to this promise that we gave ourselves back in 1950. The latter part of the promise invariably means that "equal protection" is a guarantee of equal treatment of persons in "equal circumstances" permitting differentiation in different circumstances. And so, the provisions made in the Articles 16, 335, 338, 340, 341 & 342 of the Constitution relate to reservation, protection and safeguards, in public employment in respect of the persons belonging to the SCs/STs and OBCs. One crucial aspect here is that caste-based reservation was made to highlight the 'social' as well as 'educational' backwardness of these people. The aim of the reservation was to ensure the welfare of people who have been economically and socially oppressed. But, over the years, the reservation criterion has stressed on a person's caste rather than their income. Hence, many who were affluent profited from this (chamars from SC) while many from the poorer sections did not (bhangis from SC). And, in the same vein, many such instances have been present which ultimately led the SC to specify the exclusion of 'creamy layer' in 1992 after upholding the government's decision to implement the recommendations of the Mandal Commission. Even then, infringements through fake certificates and lack of transparency had led to a chaotic situation in the implementation of reservation provisions. Every now and then, people would get reservation certificates despite being economically-sound to exploit the Constitution's provision of bringing backward classes to the same line. Had the focus been on bringing the backward classes at par with the mainstream, by giving educational reservation, everyone would be capable of appropriating the 'equal' opportunity of jobs and promotions. But the law is law, and since the SC had capped the reservations at 50 per cent back in 1963, which was pronounced in the Indra Sawhney judgment, and 49.5 per cent existing reservation has been the structure till date – 7.5 per cent for STs, 15 per cent for SCs and 27 per cent for OBCs which was added after the 1979 Mandal Commission recommendation. However, implementation of the same has not been precise across regions with Haryana (70 per cent), Tamil Nadu (69 per cent), Maharashtra (68 per cent), Jharkhand (60 per cent), and North-East (80 per cent) being a few examples. Of course, the Maratha agitation earned the community 16 per cent reservation in jobs and education thanks to the Maharashtra legislature. But the pertinent question is whether economically-backward sections should be considered for the reservation quota, especially since socially-backwards have been in the interest of the Constitution ever since its inception. The answer, invariably, is yes. And so, quite rightly, when the Union Cabinet, all of a sudden after its four years and eight months tenure, decided to advocate 10 per cent quota for the economically weaker sections (EWS), it got the support of the Opposition and the others. For the simple fact that they do need a reservation. While the Opposition criticised the Modi government's intent, given the timing of the proposal – Lok Sabha elections in April/May – it expressed the same note of concern as them when it came to the EWS. Their argument and general understanding of the pertinent situation both clearly direct towards the current government's desperate attempt to please the upper-castes, who have a major electoral footprint in several states. Further, the confidence to clear the constitutional amendment bill in the current winter session of Parliament itself is a testimony to their eagerness. While the government has a majority in Lok Sabha, it still needs the Opposition to favour it in Rajya Sabha – whose winter session has been extended by a day. While the opposition condemned the politically-motivated move, legal and political experts unanimously asserted the challenges that the bill is bound to face upon legal scrutiny. Clearly, the implementation of the same would be one apart from it breaking the SC-capped reservation ceiling of 50 per cent. Reservations, though initially aimed to get the backward sections at par and ultimately dissolve the divide, have only been amended to still be a feature of the Constitution, and in this regard, has always been a political instrument deployed at will.