Upper Caste/Economic Reservation: Decluttering between the zebra lines

When the government of Kerala has gone official in implementing the upper caste reservation in state service, with Kerala Public Service Commission (PSC) having published the rules providing for it, a few misconceptions about the upper caste reservation, going under the euphemistic nomenclature Economically Weaker Sections (EWS) reservation, need to be cleared.

The first is its very name. If any one asks whether a zebra's stripes are white on black or black on white, it would get a fifty-fifty answer. But here if the question is whether this is for the poor among upper castes, or the upper castes only among the poor, it would be the latter. For, even if the poverty definitions change to any material effect (currently below a family income of Rs 4 lakh a year, translated to just above Rs 33,300 per month), the classification of upper castes won't change. If the reservation were meant for the poor alone, the poor from all classes should have been brought into its ambit. On the contrary, the constitution amendment passed for this purpose itself states that it is for "any economically weaker sections of citizens other than those mentioned in clauses (4) and (5)" (which cover the reservation-eligible communities). Thus it goes without saying that the class of forward castes is a constant in the intent of the constitutional amendment whereas the criteria of poverty is variable. Only that a threshold based on poverty has been fixed to define poverty.

Second is the almost deliberately created misunderstanding that the EWS reservation is mandatory on the states as per the constitutional amendment – which actually states only that "nothing in this Article or … shall prevent the State from making.. any provision for the advancement of any economically weaker sections of citizens". This is patently an enabling provision, not a mandatory one. In January this year, a Supreme Court advocate CS Mani had filed a petition in the apex court praying for ordering states of Karnataka and Tamil Nadu, which had not implemented the new reservation, to do that. When the court sought the response of the Centre, the latter said its Department of Social Justice and Empowerment "has no role in deciding the reservation policy of any State government".

Third is the notion that ten percent reservation is a fixed number, hard and fast. In the 103rd amendment passed by parliament, it only states "subject to a maximum of ten percent", not ten percent; thus it can be any number below ten percent. When a state like Kerala explains 'in line with the law passed by the Centre', it stops short of stating the full truth, thereby implying untruth too. In addition, at the press conference held by Kerala chief minister Pinarayi Vijayan on 26 October - the day the government notification was released - there were references that repeated such misleading intent.

Kerala chief minister also has been saying that the communities curently enjoying reservation will not lose anything. This would be tantamount to saying that the reservation communities have no claim on the non-reserved general category of 50 percent. It is simple math that when 10 percent is set apart from the total for the EWS, the general quota will get reduced to 40. Thereby, a backward reservation candidate ranked 41 will be pushed down to take a backward quota position and thus moving that rank holder a notch below. Eventually there will be an elimination of one from the backward quota.

Now, when the highest court was considering the said plea of the lawyer, there were not one, but twenty petitions pending before it; they challenged the validity of the Act providing for forward caste reservation; for six months a decision had been pending before the court on whether the petitioners' plea should be referred to a constitutional court or not. And the bench had also considered a plea to stay the new EWS reservation until the court gave its final verdict on the petitions. But this prayer for stay was rejected.

Eventually in August this year, the court heard the case. The petitioners had argued that using economic criteria for determining reservation and the quota exceeding 50 per cent were against the basic character of the Constitution and pleaded to declare this invalid. However, the court did not deem these fundamental issues at stake to be reason enough to freeze EWS in the interim. Therefore, if the legislation is eventually declared null, the beneficiaries of EWS reservation in the interim may be in for difficulty or candidates from other sections would have lost their opportunity. Still the court did not consider a stay and heard the case for five days to decide if and whom to refer it. Finally, after five days of hearing, the bench decided to refer it to a five-member constitutional bench.

The background of reservation at national level

Reservation for other backward communities was a concept that took roots for practical steps in the 1980s. Till then, quotas for jobs and seats in educational institutions were limited to state level, depending on the political decisions of the dispensation in each state and on the demographic pattern in them (Tamil Nadu has 69 percent reservation in services and in higher education). It was the central government headed by Morarji Desai that constituted a commission on Jan 1, 1979 with BP Mandal as chairman to study the subject in detail. The commission submitted its report in 1980, after an extensive research into the conditions of caste-based communities, social and educational development in different geographies and among religious communities and submitted a robust report. But it had to wait another ten years for its implementation when finally it took the VP Singh-led coalition government to bring it to fruition in 1990. Reservation by that time had become such a sensitive, if not inflammatory, theme. But then followed a politically tumultuous period with anti-Mandal agitations rocking the country, marked by self-immolations and violent protests – and the government eventually fell mostly on that score. By the time PV Narasimha Rao's Congress-led government succeeded it in 1991, calls for a parallel quota for (purportedly the economically backward of) forward/upper castes were so vociferous that Rao had to introduce an appeasing executive order providing for reservation for the ostensibly EWS . That was also a Mr Ten percent for the upper castes with its frill of economic criteria.

Rao government's order was challenged in the court with petitioners Indra Sawhney and others citing the violation of constitutional principles in the order. A nine-member bench heard the case and eventually issued a verdict with 6:3 majority. The judgement mainly ratified the law for backward class reservation of the Mandal Commission, but struck down the subsequent introduction of reservation based on economic criteria. The historic majority judgement authored by Justice BJ Reddy, also said that backwardness could not be decided based on economic criteria alone without relation to other factors. The Indra Sawhney case judgment deliberated at length on the principle of reservation envisioned in the constitution and also surveyed the basis to be used to classify the 'backward' underprivileged class. It also laid it down as a principle that reservation is meant for communities not enjoying adequate representation, not proportionate representation, in the echelons of government. The judgement also brought in the concept of 'creamy layer' - consisting of the richest layer of the backward communities - who should be kept out of the reservation net on criteria to be set by the State to define the 'creamy layer'.

Core issues at stake

The issues currently in question are about the compatibility of the EWS reservation with the basic structure and principles of the constitution, as per Modi government's amendments made in January 2019 (of course supported by almost all parties in parliament except the Muslim League and the AIMIM) to the constitution's Articles 15(6) and 16(6). Impinging on the merits of the amendments as they are, the litigations pending with the Supreme Court are also likely to harp on the the verdict of the nine-judge bench in the Indra Sawhney case in which crucial points of economic reservation were decided. And the key points of them as per reports available are whether reservation based on economic criterion is consistent with the basic principles of the Constitution; whetherthe newly introduced ten per cent reservation wouldn't result in exceeding the reservation ceiling of 50 per cent set by the Supreme Court; if the economic criterion is accepted, whether the exclusion of scheduled caste and scheduled tribe from economic considerations can stand constitutional scrutiny; and whether the inclusion of self-financed educational institutions in the EWS net will be in conformity with the equality principle of the Constitution. It remains to be seen what the position of the five-member bench will be when the verdict of the nine-member bench's judgment is raised before the court. Right after the passage of the amendment bill, jurists had expressed doubts along these lines. However, the immediate situation is that in the absence of a court-ordered halt, the implementation of the upper class reservation is ongoing, causing much heartburn and protests.