Is there a case for reservation for the forward classes?
Social justice is not possible if we exclude the economically backward sections of our society
Social justice is inclusive in nature. It means ensuring that no marker of backwardness is left untouched. Poverty is one such marker of backwardness, and a very strong one, which denies certain basic rights, and equality in society, to individuals affected by it.
The Preamble, which is the soul of the Constitution, promises to all citizens social, economic and political justice. The economic status of citizens constitutes one of the three tests of backwardness. Hence, the ends of social justice cannot be truly met if we exclude the economically backward sections of society from availing the fruits of development in an equal manner.
A move to help the poor
Poverty denies equality of opportunity to individuals in education and employment. It denies them the opportunity of a decent and sustainable livelihood. Reservation, by the prevalent logic, ensures participation of the disadvantaged sections in employment through positive discrimination. Hence, there was a strong case for making a provision for reservation for the economically backward in the general category in education and employment to ensure that they also get reasonable opportunities to advance in life.
The present provision of 10% reservation for the economically backward in the general category is being referred to as reservation for the ‘savarnas’, or upper castes. However, reservation under this category is not limited to upper caste Hindus; it is available to the poor in all general categories, who were not eligible for reservation under any other category hitherto. As for the upper caste Hindus, a significant proportion of the population live in the villages and in remote areas with limited economic opportunities. They face disadvantages in the matter of getting access to education and employment. Hence, it was necessary to lend a helping hand to them as well.
The test of constitutionality
To those who point to the Supreme Court’s capping of reservation at 50% in the famous Indira Sawhney case, I wish to mention that this ceiling is applicable only for reservation for the socially and educationally backward category, i.e. to the Scheduled Castes/Scheduled Tribes (SCs/STs) and the Other Backward Classes (OBC) categories under Articles 15(4) and 16(4) of the Constitution. It does not apply to the present case of reservation, which has been provided as a special provision through a constitutional amendment.
Further, to those who mistake the provision of reservation under the Constitution to be applicable only to the SCs/STs and OBCs, I wish to remind them that the present quota, introduced through the 124th Constitution Amendment Bill, is provided through adequate amendments in Articles 15 and 16 of the Constitution, which allow for making “special provision for the advancement of any economically weaker sections of the citizens”. Hence, it can stand the test of constitutionality in the Supreme Court.
Social justice is a dynamic concept which has evolved over time in accordance with the changing needs and circumstances of our society. The concept has not been defined in our Constitution. It has rightly been left to the wisdom of the lawmakers to increase its ambit from time to time, according to the needs of the time. A quota for poor citizens was a crying need of our times. The Modi government realised this and, under the true spirit of ‘Sabka Saath Sabka Vikas’, made the dream of 10% reservation a reality. For other political parties, this had been nothing more than an electoral gambit all along.
Meenakshi Lekhi is a BJP member and a lawyer
Nothing stopped the government from providing jobs or scholarships to the poor
The 124th Constitution Amendment Bill, proposed and promulgated in just a few days, is a gross and wilful subversion of the principle of social justice, which the Supreme Court has held to be the part of the basic structure of the Constitution. It is hard to understand how the government, which has all the legal resources and counsel at its disposal, chose to characterise reservations mandated by the Constitution as a job guarantee or a poverty alleviation programme. Reservations for students in public institutions of higher education and jobs in the public sector were envisioned to bring about adequate representation to those sections of society that are oppressed by caste discrimination. Reservations along with legal protections against discrimination form the juridical structure for social upliftment of the backward classes of Indian society.
Constitutionally invalid
The Constituent Assembly amended Article 15 by inserting Clause (4), which states: “Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” The use of income or economic criteria for providing reservation for those not included in the backward classes, or for those belonging to the general sections, is thus constitutionally invalid.
If indeed the Narendra Modi government wished to benefit the poorer sections of those not included in the backward classes, Scheduled Castes and Tribes, there was nothing that stopped it from creating jobs along the lines of the Mahatma Gandhi National Rural Employment Guarantee Act, which also created rural infrastructure. Nothing stopped it from instituting new universities and colleges and providing need-based scholarships for poor students. Granting 10% reservation in government jobs and education institutions to households in the general category with an income of less than ₹8 lakh per annum will make little difference to their poverty levels as corporate-led jobless growth has increased income inequality exponentially.
A mere fig leaf
True to its ‘jumla’-gimmickry model of governance, the Modi government chose not to increase the size of the pie but to cut away another slice from the already shrinking pie of public sector institutions. The promise of existing reservations is nowhere near to being fully realised. Public spending for scholarships for students in the SC/ST/OBC categories (and minority students) has come to a near halt. Rohith Vemula’s suicide is a direct result of such tactical obstacles propped by this government in the path of social justice.
The move reverses the progress made in India over decades. It was perhaps put in place as the government was unable to provide any relief from the economic distress felt by small farmers, manufacturers, entrepreneurs, traders and the working class. In fact, this distress was worsened by the impact of the rash decision called demonetisation and the poor implementation of the Goods and Services Tax.
The 10% reservation is nothing but a fig leaf to cover the monumental failure of this government on all fronts. It is a ploy that will cost India dearly and push away further its hope for social harmony.
Manoj Kumar Jha is an academic and a Rajya Sabha MP
IT’S COMPLICATED | BHARTRUHARI MAHTAB
When you allow reservation for the advanced classes, it changes the meaning of reservation
During the Lok Sabha debate on the 124th Constitution Amendment Bill, to provide reservation in jobs and education for the economically weaker sections in the general category, an opinion was expressed that 50% of the States have to approve it. But that is not the case. Under Article 368(2), Parliament can amend the Constitution by passing the Bill in each House by a majority of the total membership of that House present and voting. Thereafter, the President shall give his assent to the Bill and the Constitution will stand amended.
But amendments which seek to make a change in certain specific provisions, including Articles 54, 55, 73, Chapter IV of Part V, Chapter V of Part VI or Chapter I of Part XI, or any of the Lists in the Seventh Schedule, or the representation of States in Parliament, shall require to be ratified by the Legislatures of not less than one-half of the States.
Providing the context
Article 15 guarantees the fundamental right of prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth. Article 15(1) and (2) broadly state that the “State” shall not discriminate against “any citizen” on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(3) onwards, the Constitution lays down provisions relating to protective discrimination — the policy of granting special privileges to underprivileged sections. Article 15(3) and 15(4) are the foundations for reservations in education and employment in the country.
Article 15(5) was introduced by the Constitution (93rd Amendment) Act, 2005. It is an enabling clause that empowers the State to make such provision for the advancement of SCs, STs and socially and educationally backward classes of citizens in relation to a specific subject, namely, admission to educational institutions including private educational institutions, whether aided or unaided by the state, notwithstanding the provisions of Article 19(1)(g). This was challenged in the court. In 2008, a five-judge Bench headed by the then Chief Justice of India, K.G. Balakrishnan, upheld the law providing 27% quota for OBCs in IITs, IIMs and other central educational institutions, but said it would not apply to the creamy layer. The Supreme Court upheld the validity of the Constitution (93rd Amendment) Act, 2005. It also held that the amendment does not violate the basic structure of the Constitution.
It is in this context that the reservation for the economically weaker sections is to be considered. A nine-judge Bench of Supreme Court had ruled that reservation is a remedy for historical discrimination and its continuing ill-effects. The court had also said that reservation is not aimed at economic uplift or poverty alleviation. Economic weakness is on account of social backwardness. The economic criteria will lead, in effect, to the virtual deletion of Article 16(4) from the Constitution.
Is this the new poverty line?
Since the new amendment talks of economic criteria and addresses the grievances of Brahmins, Baniyas, Patels, Marathas, Gujjars, Thakurs and even Muslims and Christians for the first time, many think it will be broad-based. It is the responsibility of the state to uplift the poor. Traditionally marginalised sections need affirmative action. But the current policy says those households earning less than ₹8 lakh annually or owning less than 5 acres of land can avail of the quota. That is a salary of ₹66,000 a month. If so, is this the new poverty line of India? And if so, why are those earning more than ₹25,000 a month being taxed? The moment you make reservation for the advanced classes, it changes the meaning of reservation altogether. Reservation is not an anti-poverty programme.
Bhartruhari Mahtab is an MP from the Biju Janata Dal
Source: The Hindu, 1/02/2019
