The BJP Government and its allies on January 7 2019 announced 10% reservation in education and employment for economically backward people from the upper castes. Ministers from the ruling party have said that it is a historic decision and a commendable step widening the social justice net and pointing an inclusive approach of the government. However, the opposition has termed it as another jumla and lollipop.
It would be reasonable to analyze the decision of the cabinet in the light of the employment opportunities or jobs crisis that the people of this country are facing today. As per the data available on the official website of the Centre for Monitoring Indian Economy (CMIE), there are currently 31 million unemployed Indians looking for jobs. The State of Working India (SWI) 2018 report says that this rate of unemployment is the highest seen in India in at least the last 20 years. Moreover, the recent report of the CMIE has revealed that we have lost more than one crore and ten lakh jobs in 2018.
A Poll Gimmick
In my opinion, it is another jumla of the government for the appeasement of the economically backward sections of the society from the upper castes before the 2019 Lok Sabha elections, since upper caste voters have been BJP’s vote bank. They have been quite upset from the constitutional amendments in the Scheduled Castes and Scheduled Tribes Act. They have also been dissatisfied from the mere promises that have not been fulfilled by the ruling party. Though the announcement from the current ruling dispensation providing 10% reservation for the upper castes sounds quite interesting on paper yet it is at least an impossible proposal for now. There are various reasons as to why this idea is unworkable.
The proposed bill has to be passed by both the Lok Sabha and Rajya Sabha. If you see the strength of the BJP in the Rajya Sabha, it is almost 73. The current strength of the NDA in the Upper House is something around 83 or 86. However, the minimum number of members from the ruling party must be 163 in the Rajya Sabha in order to get the ascent of the House. How is the Government going to do this in the very last day of the session? Suppose that the proposed amendment has been passed from both the Houses. It, then, needs to be ratified from different state assemblies. Ultimately, the proposed bill is going to face some strong legal challenges, since there are many unprecedented pronouncements and judgments of the Apex Court in regards to reservation that it shall not exceed 50%.
Constitutional Perspective
Article 15 (4) of the Constitution provides special provision for the advancement of backward classes. It is pertinent to mention that the clause (4) of Article 15 is an enabling provision and does not impose any obligation on the State to take any special action under it. The objective of such a provision is that a preferential treatment can be given validly where socially and educationally backward classes need it. In the case of Balaji v. State of Mysore, the Mysore Government issued an order under Article 15 (4) reserving 68% seats in colleges, and only 32% seats were available for the merit pool. It was held that the sub-classification was not justified. Furthermore, the State would not be justified ignoring altogether advancement of the rest of the society in its zeal to promote the welfare of the backward classes.
The most important judgment which was pronounced by the Supreme Court in 1993 pertaining to reservation is Indra Sawhney v. Union of India, popularly known as Mandal Commission Case. The Apex Court by 6:3 majority held that the sub-classification for the purpose of Article 16 (4) can be done but as a result of sub-classification the reservation cannot exceed more than 50%. Article 16 (4) of the Constitution empowers the State to make special provision for the reservation of the appointments of posts in favour of any backward classes of citizens which has not adequately been represented in the services of the State as per the opinion of the State. There are many important points in the judgment of the Mandal Commission Case related to reservation. For instance, a backward class of citizens cannot be identified only and exclusively with reference to economic criteria. Creamy layer must be excluded from backward classes. Backward Classes in Article 16 (4) are not similar to socially and educationally backward classes. The most important point is that the reservation shall not exceed 50%.
Wild Goose Chase
Thus, if you are applying castes in reservation, you cannot simultaneously apply economically backward classes and the vice versa. The same issue was raised even at the time of Narsimha Rao’s government where the government introduced the economic criterion in granting reservation by giving preference to the economically backward sections of the higher castes. The Court had struck the proposal on the grounds as I have earlier mentioned. The fact is that the BJP knows that the 10% reservation is not possible at all. So, it is another slogan for the 2019 Lok Sabha elections. Even the BJP leader Subramaniam Swami has opined on the same matter that the idea is totally against national integration of the society. In short, it is another lollipop or poll gimmick. Since twenty four lakh approved vacancies are there in government departments for which people have not been hired. Ultimately, it will further lead to a path of insecurities not only for the backward sections of the society but to the upper classes as well.
The author is a fourth year law student at the Faculty of Law, Aligarh Muslim University