The first anti-Mandal amendment

The constitutional system put in place has no doubt proved to be durable. But in the 53 years of its existence, the Indian Constitution has ...

The constitutional system put in place has no doubt proved to be durable. But in the 53 years of its existence, the Indian Constitution has already been amended 86 times, which is far more than what any of its counterparts has undergone. While this has happened over the decades for a variety of reasons, the Mandal judgment delivered in 1992 has the dubious distinction of spawning the most number of constitutional amendments. There have already been five constitutional amendments to get around the Mandal verdict8217;s ban on reservations in promotions and its stipulation that reservations cannot exceed 50 per cent of the seats. And now, in the run-up to the Rajasthan assembly election, the Congress and BJP have been making noises suggesting a sixth amendment to the Constitution, this time to extend government job reservations to the poor among upper castes.

If the ongoing political rhetoric translates into a Bill, it will be the first constitutional amendment proposed at the instance of anti-Mandal forces. The five amendments enacted earlier were all meant to restore to backward classes much of what was taken away from them by the 1992 Supreme Court judgment even as it upheld Mandal reservations. Three of the five amendments were designed to undo the court8217;s decision to end the long-established practice of providing quotas in promotions for SCs and STs. The first amendment empowered the government to carry on with those reservations in promotions in the teeth of the Supreme Court judgment. As a corollary, Parliament enacted subsequently that such promotees shall also enjoy 8216;8216;consequential seniority8217;8217; in relation to others. The third amendment in this regard went further by specifying that in matters of promotion for SCs and STs, the government can make any provision 8216;8216;for relaxation in qualifying marks in any examination or lowering the standards of evaluation.8217;8217;

The remaining two amendments made in the wake of the Mandal judgment sought to circumvent the 50 per cent limit on reservations. One granted immunity to the Tamil Nadu Government from being challenged in a court for providing reservations way beyond the 50 per cent limit. In an amendment of wider application, Parliament enacted that the 50 per cent limit shall not apply to the 8216;8216;carry forward rule8217;8217; which allows the government to carry forward to the subsequent year any vacancy that remains unfilled when there are not enough candidates from the reserved category.

To be sure, all the five pro-Mandal amendments in the Constitution have been based on an all-party consensus. That may make it that much harder for the Supreme Court to interfere with the amendments 8212; if and when any of those is challenged. For a litigious culture such as ours, the apex court has surprisingly had no opportunity till now to deal with the constitutionality of the slew of Mandal-related amendments. But it would be unwise to presume that this state of affairs serves the cause of social justice. In fact, while delivering the Mandal verdict, the Supreme Court did a remarkable job in balancing the competing interests of social justice and efficiency in administration. In the process, it laid down restrictions such as the 50 per cent rule to ensure that efficiency in administration is not sacrificed at the altar of social justice. Successive governments at the Centre have over the last decade whittled down those restrictions, upsetting the balance contained in the scheme introduced by the Supreme Court.

This does not necessarily mean that politicians care more than judges for the welfare of backward classes. On the contrary, no government has cared 8212; or dared 8212; to implement in earnest the directions given by the court to ensure that the benefit of reservations is limited to the really needy castes. The court was much exercised over the vast differences in socio-educational conditions among the castes that have been banded together as other backward classes OBCs. So, it directed the Centre and states to set up permanent bodies to make recommendations on 8216;8216;complaints of over-inclusion and under-inclusion8217;8217; in the OBC lists. But there has hardly been any instance of a caste being weeded out. The more influential OBCs continue to corner quota benefits at the expense of more backward castes. The driving force is politics, not concern for social justice.

It is against this backdrop that Rajasthan chief minister Ashok Gehlot and BJP president Venkaiah Naidu came out in quick succession with the proposal of extending reservations to the poor among the upper castes. This despite the fact that the Mandal judgment had dismissed a similar attempt by the Narasimha Rao Government to introduce a 10 per cent quota purely on economic criteria. The court ruled that nobody can be debarred from a government job 8216;8216;solely on the basis of his income or property-holding.8217;8217; Since such an attempt to widen the quota net has been already held to be unconstitutional, Gehlot and Naidu steer clear of the legalities lest their game is exposed.