May 4, 2016 12:32:29 am
What is the content and context of the Ordinance on reservations promulgated by the Gujarat government?
The state government on Sunday promulgated an Ordinance to provide 10% reservations for the ‘poor’ or EWS (Economically Weaker Section) among upper castes (general category), with EWS defined as families with annual income less than Rs 6 lakh.
The Gujarat Unreserved Economically Weaker Sections (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Ordinance, 2016, came into force immediately. The Ordinance said that “it is also a fact that Economically Weaker Sections (EWS) of the unreserved categories of the society have expressed their inability to compete with the higher strata who are economically sound and as a result of which, such EWS feel disadvantaged.”
Since late 2014, Gujarat has been roiled by an agitation by the Patel/Patidar community demanding reservation. The Patidars, who have backed the BJP since the mid-80s, have been hit by the economic slowdown, and the party and government have found it difficult to manage their angry protests. The young Patidar leader Hardik Patel, who went to Bihar to campaign against the BJP in the Assembly elections last year, has been in jail for close to 200 days on charges of sedition. The BJP hopes the new quota will be able to appease the Patidars.
But doesn’t the quota take the reservation ceiling beyond what has been fixed by the Supreme Court?
The Indra Sawhney or Mandal judgment of 1992 fixed a ceiling of 50% for reservations across categories. There have been several attempts by state governments to break through the ceiling, but the only state that has quotas in excess of 50% currently is Tamil Nadu (about 69%). The state government’s legislation was accommodated in the Ninth Schedule of the Constitution in 1994, putting it beyond the scope of judicial review. The matter has been in courts, however, and the Supreme Court is yet to give its final judgment in the matter. Attempts by Karnataka and Rajasthan to introduce new quotas have been quashed by courts. Cases of Andhra Pradesh and Telangana are in the Supreme Court. At the end of March 2016, the Haryana Assembly passed a Bill giving reservation to Jats and five other castes, breaching the 50% ceiling. Broadly, Dalits and Scheduled Tribes have reservations of 15% and 7.5% respectively. After 27.5% for OBCs is added, the total quota generally comes to 49.5%.
What is the problem with reservations based on economic criteria?
Article 340 of the Constitution speaks only of “socially and educationally backward classes” (SEBCs), and not of economic backwardness. Political parties often face problems because, while they want to appease lower caste groups, they are heavily dependent on patronage from smaller but influential higher castes, some of whom like the Jats (Haryana, UP) Gujjars (Rajasthan) Kapus (Andhra Pradesh) and Patidars (Gujarat) have been clamouring for reservation.
Reservations had begun before Independence, after princely states in peninsular India saw the caste skew in qualifications and recruitments. Thus, Chhatrapati Shahuji Maharaj, the Maharaja of Mysore, and the kingdom of Travancore, etc. instituted quotas for castes engaged in “lowly” occupations who were almost unrepresented in the administrative machinery or in academic pursuits. According to former bureaucrat and activist P S Krishnan, social exclusion was not measurable statistically, but was a condition of social discrimination that also resulted in educational backwardness. Reservation was never thought of as benefits or a programme for doles — or like the MGNREGA to redress income inequality or help the poor. Reservation is for communities much less than equal, precisely because of the phenomenon of caste exclusion that followed from the varna system and untouchability. So, while BSP chief Mayawati too discussed and offered reservation for upper caste poor, it has been looked at with great suspicion by backward castes, Dalits and tribals as an insidious argument aimed at ultimately challenging and finishing the system of reservation designed to address social exclusion.
Besides caste, on what other bases are quotas determined?
States have several categories of quotas for jobs and seats in educational institutions aimed at addressing various disadvantages. JNU has among the most refined systems for designing a deprivation quotient, where the region the person comes from is a criterion. (Thus, candidates from certain districts of Odisha and the Northeast may get a few more points than those from the big metros.) Displaced Kashmiri Pandits get points, as do children of those who have died serving in the armed forces. First-generation learners get a leg-up over those who are already ahead and privileged.
Gender has been a much discussed aspect, and remains a work in progress. The 73rd and 74th amendments introduced an extensive system of reservation for women in Panchayats and urban bodies, and some states now have 50% reservation for women in Panchayats. A Bill reserving a third of all MP and MLA seats for women was passed by Rajya Sabha in March 2009, but faces powerful opponents who see the creation of gender as a marker as a way of taking away what caste reservation has brought to them. Parties like the SP, BSP and RJD have asked for a subquota of caste within the gender quota, adding another layer to the debate.
The Andhra Pradesh government’s quota for Muslims is pending in court. In 2012, the Centre introduced quotas for backward Muslims, fixed as a subquota under Mandal (which covers OBCs, including Muslim OBCs) which too is in court.
A quota for the disabled has been implemented in government jobs, but its effectiveness has been questioned. Quotas for those with special needs, or for third gender persons have been debated both in courts and outside.
Ultimately, while multiple criteria may be cited for quotas, they must stand the test of Article 15 — no discrimination on grounds of religion, race, caste, sex or place of birth — and Article 16(4), which qualifies the right to equality of opportunity in matters of public employment by saying that the state would always have the right to provide for reservations for backward classes.
Given this background, where is the Gujarat Ordinance headed?
The rise of the BJP in Gujarat coincided with caste- and anti-reservation riots against the raising of quotas, and it would not like to be at the receiving end now. BJP governments in Haryana and Rajasthan have already signalled intent with their handling of quota agitations. Even if all these actions end up being debated — and possibly struck down — in court, the state governments have bought time, and managed to come across as having tried to keep their promises. In Gujarat, the Patidars have termed the Ordinance a “lollipop”; experts believe that unless deeper issues of the economy are addressed, the resentment will likely continue to play out in the form of more agitations.
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