Quota Correction

SENIOR DELHI-BASED LAWYER Indra Sawhney is amused that her name has become part of India’s legal lore and that a case she fought decades ago keeps coming up whenever there is any talk of affirmative action. “So long as there is a reservation system in the country, I am sure my name will keep surfacing,” she laughs. Sawhney hastens to add that she never thought her name would go down in history when she filed a petition against the Narasimha Rao-led Government’s move in 1992 to offer a quota to the poor among upper-castes in public-sector jobs and educational institutions that finally led a nine-member bench of the Supreme Court to impose a cap of 50 per cent on total reservations. Prior to that, several benches had looked into her petition in a prolonged legal battle. “I filed a plea after watching young students at a protest rally in Delhi… I would not hesitate to file a petition again,” she tells Open, referring to the Narendra Modi-led Government’s hastily introduced Bill, an apparent political masterstroke by the ruling coalition in the run-up to the General Election a few months away, to offer a similar 10 per cent quota to the economically weak among all those eligible for general category seats. The 1992 verdict in the Indra Sawhney vs Union of India case had set caste and not economic status as the sole criterion for reservations.

Responses to the Centre’s 124th Constitution amendment Bill—cleared by both Houses of Parliament and set to become law upon the President’s assent—that factors in economic criteria for quota eligibility, tend to cut both ways. Unlike Sawhney, Professor DL Sheth argues that times have changed from the time of India’s freedom and the various backward class commissions that followed. Over the decades, says the political sociologist, several backward castes other than Scheduled Castes/Tribes (SC/STs) have benefitted from affirmative action prescribed by the Constitution, which outlined caste as the policy’s determinant. Before the Modi Government’s new Bill, 49.5 per cent of educational seats and public-sector jobs were reserved for SC/ STs and Other Backward Classes (OBCs) while the rest were open to candidates on the general list. Now, this list shrinks to 40.5 per cent.

Adds Professor Sheth: “There are several notional upper castes that are ‘left behind’ and ‘unseen’ in our society.” It is only apt that enabling measures are taken to offer such economically backward communities a route to upward mobility, Sheth insists, recalling that Dr BR Ambedkar had suggested a caste-based quota for SC/STs for only a limited period: “Reservations have to be a dynamic process and therefore it is only wise to help out the backward among upper castes.” The Union Cabinet approved the Bill on January 7th, placed it for debate and approval in the Lok Sabha on January 8th and then in the Rajya Sabha on January 9th. The constitutional amendment introduces an Article 15 (6) and Article 16 (6).

The opposition has found itself at its wits’ end after the Centre pulled this surprise on the country. Several reasons make it hard to oppose. First, the proposed law won’t cannibalise existing caste- based quotas for SC/STs and the numerically preponderant OBCs. Secondly, various political parties, including the Left, had in principle favoured economic criteria for India’s reservation policy and had already implemented such steps (at least in small measure) in states under their rule. More importantly, none of the political parties—with the probable exception of the Indian Union Muslim League and All India Majlis-e-Ittehadul Muslimeen led by lawmaker Asaduddin Owaisi—wants to make any noise that would hurt its chances of pulling in upper-caste votes with elections around the corner. That explains why a vast majority of the opposition gave the Bill a smooth parliamentary passage; all they could do was express anger, question the ‘motive’ and ‘timing’ of the Government’s quota game plan, and make statements on why ‘the last-minute’ hurry to pass such a law amounts to ‘disrespect’ for Parliament, as some members who took part in the discussion alleged. Finance Minister Arun Jaitley, meanwhile, said that a 10 per cent additional quota is legally valid since it’s not going to be implemented on the basis of caste; the ceiling of 50 per cent, according to him, is applicable only for caste-based reservations. On his part, Minister of Social Justice and Empowerment Thawar Chand Gehlot, who introduced the Bill in both Houses, said that economically weaker sections irrespective of religion could avail of the latest quota. The symbolism of Gehlot, a Dalit, formally proposing a law that promises jobs and education for the poor on the general list was inescapable.

Despite facing charges of putting political expediency over parliamentary propriety, the BJP-led dispensation has shown deftness in its effort to retain its influence among upper castes, the party’s core voter base, and also neutralise agitations by caste groups demanding OBC status across various states. The Government’s announcement came shortly after two regional parties in Uttar Pradesh announced a pre-poll agreement and less than a month after the BJP lost three assembly elections in key north Indian states (by a wafer-thin margin in at least one of them). An internal report by the Rashtriya Swayamsevak Sangh (RSS), the ideological mentor of the BJP which reviewed these election reverses, said that upper-caste voters who had been loyal to the Hindutva party had veered away from it, resulting in poll setbacks by narrow margins in several constituencies, especially in Madhya Pradesh, considered the ‘heartland’ state of the RSS. In that state, the BJP’s Shivraj Chouhan-led government that had been in power for 15 years lost for a variety of reasons, the most prominent in the RSS’s view being disillusionment among upper- castes. In MP, where BJP cadres are hardly distinguishable from those of the RSS, the party won 0.1 per cent more votes (41 per cent) overall than the Congress (40.9 per cent), though it won only 109 seats while the latter bagged 114. In Rajasthan, too, the gap was small, with the Congress winning 39.3 per cent of all votes polled (which translated into 99 seats) and the BJP 38.8 per cent (winning it just 73 seats).

THE MODI GOVERNMENT’S latest dose of quota politics is expected to counter-balance the influence that leaders of Patels, Jats, Marathas and other caste groups fighting for OBC status could wield in the elections, the biggest poll battle yet for Prime Minister Modi, who is seeking a re-election for another five years. In Gujarat, where the Patidar agitation, like similar protests elsewhere, is largely a reflection of rural distress, the BJP’s worry in the 2017 state polls was resentment among Patidars, a traditional votebank of the party. Though the personal appeal of Modi, who led the campaign for his party, eventually prevailed in his home state, the party found the going tough in Patel-dominated areas where their young leader Hardik Patel had command of a large following. Jignesh Mevani, too, had emerged as a prominent leader, particularly among Dalits, following the 2016 Una agitation in the wake of a video clip that surfaced of some Dalits being thrashed mercilessly for skinning a dead cow. Forty-two -year- old Alpesh Thakor, an OBC leader who is part of this triumvirate, also made an impact on the polls. Dalits form 7 per cent of Gujarat’s population, Patidars make up close to 14 per cent, and Thakors are estimated to be around 22 per cent. Armed with the proposed law, the BJP hopes to rein in the appeal of caste leaders raising quota demands in Gujarat as well as in states such as Haryana, Maharashtra and Andhra Pradesh. Some of these protests had turned violent, throwing life out of gear in these states, much to the dismay of the ruling BJP.

The BJP, like the Congress and others, had tried to implement reservations based on economic criteria earlier. These attempts ran into a legal deadlock. Like Narasimha Rao’s failed move in 1992, efforts by state governments in Gujarat and Haryana have either been stayed or struck down by courts. In 2016, the Haryana government tried to effect a law providing 10 per cent reservation to Jats and five other communities in the state; the same year, Gujarat also brought in an ordinance offering a 10-per cent quota to economically weaker sections in the face of protests, but it was quashed by the court as ‘unconstitutional’. In fact, in 1990 VP Singh himself had offered a 5-10 per cent quota for the upper- caste poor as a conciliatory gesture while discussing the Mandal Commission Report.

While the Centre’s latest law has been cheered by upper castes and quota protestors, the likely legal hurdles in its implementation may prove to be a dampener (if not before the elections, then later). Rival politicians, meanwhile, accuse the BJP Government of insincerity, alleging that the party is in the business of offering mere ‘lollipops’, akin to its 2014 promise to create 20 million jobs each year; Modi had also said that each Indian citizen would get Rs 15 lakh in his or her bank account from the black money he hoped to confiscate from tax evaders. “This is just an election jumla (fraud),” lawyer Prashant Bhushan tells Open, “If anyone drags the issue to court, most likely the law will be struck down, perhaps after the elections.”

PS Krishnan, a 1956 batch IAS officer of the Andhra cadre who served as secretary in the Ministry of Welfare, signed the Mandal Commission Report notification and helped steer other social justice measures as well, feels that the proposed law breaches the basic structure of the Constitution. Widely considered an authority on the history of India’s social justice, right from the time of the First Backward Classes Commission led by Kaka Kalelkar in 1955, Krishnan points out that reservations in India are for those who are “unable to get their due” because of the prevalent social system, which he says is still “viciously active”. “It is not for those [who haven’t been] discriminated against socially for centuries,” he argues, emphasising that NSSO data still shows that those with the lowest incomes are SC/STs and then OBCs. Referring to the 1990 protests following then Prime Minister VP Singh’s move to implement the Mandal Commission Report, which set aside a 27 per cent quota for OBCs, he says, “We have got a terrible caste system in this country. It makes even good people act in a wicked manner, thanks to a sense of entitlement and privilege.”

Undeterred by such comments, some BJP insiders feel that this quota legislation is the biggest ‘disruption’ since Mandal and would result in poll gains for the BJP in large states, notwithstanding alliances of the kind being formed in Uttar Pradesh between the Samajwadi Party and the Bahujan Samaj Party. Professor Sudhir Panwar of Lucknow University, however, is of the view that the quota move will not endear the BJP to typical voters of the SP or BSP. “The BJP will be able to eat into the Congress vote share in the state. Regional parties, which are the most formidable players in the state, will not face any significant threat. In fact, the reason why the BJP cobbled together this proposed law is the BSP-SP pact,” he claims.

Professor Surinder S Jodhka, a sociologist at Jawaharlal Nehru University’s Centre for the Study of Social Systems, says that he doesn’t see the new quota law “working on the ground in any meaningful way”. He notes, “Things like scholarships for quality education would have been a better option.” Besides, Jodhka feels that the idea of ‘backwardness’ does not apply to the country’s so-called upper-castes. “Backwardness in the Indian context is understood to lay in social context of communities, not individuals or households,” he says. “Globally too, affirmative action is generally [taken in favour of] social-identity based collectives, gender, race, ethnicity, etcetera. Quotas are meant to provide symbolic empowerment, to create possibilities of mobility among those who, as collectives, have been ‘left-behind’.”

The question of legal scrutiny of the law will likely emerge at some point. For the time being, it is an electoral trump card that the BJP leadership seems to have played well and at an opportune time even as its Government at the Centre faces inconvenient questions over job generation and deprivation. Incidentally, the Nobel Prize-winning economist Amartya Sen said recently that though the Modi Government was able to sustain the high economic growth of the previous UPA phase, it had failed to create jobs and do enough about tackling poverty and managing healthcare and education for the poor. In various states, farmers and small traders were up in arms against the Centre over such policies as demonetisation, which had hurt the interests of the informal sector, according to an RBI report. In an interview to PTI, Professor Sen has termed the new quota policy “muddled thinking” that may have a serious economic and political impact. However, there are those who feel that a quota for upper castes will remove the stigma that reservation candidates often have to bear.

Whatever the outcome, the BJP seems to have gained an edge in the run-up to an election destined to be bitterly fought.

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