The decision of the Union Cabinet to provide reservation of 10% for “economically weaker sections of the people who are not covered by any of the existing schemes of reservation” and to bring in amendments to Articles 15 and 16 for this purpose has to be examined from the point of view of social realities and Constitutional provisions.
The social reality
It is a fact that there are poor individuals even among the Socially Advanced Castes (SACs), i.e., the non-Scheduled Castes (SCs), non-Scheduled Tribes (STs) and non-Socially and Educationally Backward Castes (SEdBCs). They too do need help. The issue is what is the specific problem they face, and what is the appropriate Constitutionally sustainable solution for it.
Provisions of the Constitution
The relevant Constitutional provisions stand on two legs, which are mutually supportive. On the one hand, there is the principle of Equality, which prohibits the State from discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under Article 15(1), and guarantees “equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State” under Article 16(1), in addition to prohibition against discrimination against any citizen on the same grounds as in Article 15(1), specifically with respect to employment or appointment under the State.
The other leg is the special provisions, which under Article 15(4) empowers the State to “make any provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes”, and under Article 16(4) provides “for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State”.
The term “backward class of citizens” has been generally understood, and also defined by the Supreme Court in the Mandal case (Indra Sawhney vs Union of India, 1992) judgment, to include the SCs, STs, and SEdBCs. These are not exceptions, but special provisions to ensure that the principle of Equality enshrined in Articles 14, 15(1) and 16(1) becomes really effective, in the peculiar inherited Indian context of a society riddled by gross inequalities between social classes.
Rationale for SC, ST, SEdBCs reservations
As the Mandal judgment describes, the founding fathers of the Constitution were keenly and poignantly aware of the “historic injustices and inequities” prevalent over the centuries in Indian society. These were not inequities against individuals. These were deprivations imposed on certain social classes as a whole.
Such social classes consist of a number of castes. It is well known that the worst affected are the SCs, on whom the caste system imposed “untouchability”, which is not merely a series of humiliating prohibitions and injunctions, but also a mechanism to deprive them of access to education and every opportunity for advancement and upward and outward mobility. Equally deprived, though for different reasons, were the STs, who have been steadily pushed back to remote areas.
The third category of social classes is that of the SEdBCs, who are not victims of untouchability, but have been accorded a low position and status in society by the caste system, and each of the castes of which have often been traditionally linked with occupations socially considered to be lowly. They too were denied access to education and opportunity to have a “look-in” into administration and governance of the State.
The Supreme Court in the Mandal case judgment quoted Dr Ambedkar’s statement in the Constituent Assembly while replying to the debate on the provision in Clause (4) of Article 16 (at the draft stage Clause (3) of Article 10) that, “the purpose of the clause (4) was to emphasise that there shall be reservation in favour of certain communities which have not so far had a ‘proper look-in’ into so to say the administration”.
Difference between the Socially Excluded and Deprived and the Poor among the Socially Advanced Castes: Observations of the Supreme Court in Mandal judgment
Reservation was envisaged only for those belonging to these three social classes. This was part of the national and Constitutional mission to eliminate the gross social inequalities created by the Indian caste system over the centuries, of which the worst victims were the SCs and STs and, though to a lesser extent, the SEdBCs. These inequalities and injustices are not merely a matter of the past, as certain mediapersons say. They continue to be with us at present, though in a quantitatively reduced form, and threaten to continue with us into the future for failure to address this issue comprehensively at its roots.
The deprivations and backwardness of these three classes is different from the poverty suffered by individuals of the forward castes. These individuals belong to castes which were not interdicted or prohibited or prevented in any manner from access to education and from entry into services under the State.
The majority judgment in the Mandal case per Justice Jeevan Reddy held that “a backward class cannot be determined only and exclusively with reference to economic criterion. It may be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion…” Justice Sawant, in his separate concurring judgment, held that economic backwardness of the poor among higher castes is not on account of social backwardness. He also held that the educational backwardness of some of the upper castes on account of poverty can be remedied by economic props alone, which may enable them to gain equal capacity to compete with others.
A quota for the economically poor of the Socially Advanced Castes is not a new idea
During the debate after his decision to institute reservation for the SEdBCs in 1990, V P Singh, in a conciliatory gesture, offered, if the Opposition agreed, to bring a Constitutional amendment to enable provision of 5% or 10% reservation for individuals who are economically poor, without reference to and irrespective of caste. This conciliatory gesture received scant attention from the Opposition, which was bent upon opposing reservation for SEdBCs.
Subsequently, the P V Narasimha Rao government, by its O.M. dated 25.9.1991, made an addition to the V P Singh government’s O.M. of 13.8.1990, to provide reservation of “10% of the vacancies in civil posts and services under the Government of India” for “other economically backward sections of the people who are not covered by any of the existing schemes of reservations”. This particular provision was struck down by the Supreme Court in its landmark Mandal case judgment on the ground that the Constitution does not provide for reservation for any individual on economic basis alone or on the basis of poverty alone.
This is apart from the provision by certain state governments from time to time for reservation for the poor among the non-SC, non-ST, and non-SEdBC castes, which on challenge were struck down by the High Courts or the Supreme Court.
Possible effect of the proposed Constitutional amendment
Unlike the Narasimha Rao government, the present Cabinet seems to have decided to introduce Constitutional amendments in Articles 16 and 15 to facilitate the provision of 10% reservation for the “economic backward”. The question is whether such an amendment will be constitutionally sustainable.
One can expect that the present amendment will be challenged in the Supreme Court. The issue of whether the proposed amendment is in keeping with or violative of the basic structure of the Constitution is likely to arise, since the Constitution provides reservation only for any “backward class of citizens” under Article 16(4), and only for measures for SCs and STs and for the advancement of SEdBCs, which includes reservation in education and much else, under Article 15(4), because they suffered, in varying degrees, from exclusion from education and employment under the State and other opportunities of advancement, while individuals of the SACs did not suffer from such exclusion.
It is likely to be held that the proposed Constitution amendment and the proposed provision of 10% reservation for individuals of the SACs are violative of the basic structure of the Constitution. It is also likely to be held that the grounds for this do not come within the exceptional circumstances in which breach of the 50% limit can be permitted. The appropriateness of the proposed criteria for the SAC poor may also raise question marks. Besides, in the case of reservation in the services, a specific criterion is inadequate representation in the services. The SCs, STs and SEdBCs continue to be inadequately represented, whereas the SACs do not suffer from inadequacy of representation.
Appropriate solutions for the real problem of the genuinely poor among the SACs
The only problem faced by children and young people of Socially Advanced Castes who are genuinely poor is that they are not able to afford education to the fuller level for want of financial capacity. This problem has to be resolved and can be resolved by having a comprehensive scheme of scholarships and educational loans, so that no child or youth of any caste has to drop out of education at any stage only on account of financial incapacity. At the same time, this should not be at the cost of the SCs, STs and SEdBCs whose needs have till now not been fully provided for, and have to be fully provided for.
(The author is a former Secretary to the Government of India and has been in the field of social justice for SCs, STs and SEdBCs for more than seven decades)