-- An essay against Reservations and against Judicial populism
By Arun Shourie (2006)
Arun Shourie presents an insightful view into the reservation debate from the most important point: Lawmaking and Judiciary. Today the reservation debate has informed common people on the positive and negative aspects of reservation. However, the major decision making does not involve common people and rests with the Legislatures and the Judiciary. Because of this distribution of power, knowing about how legislature and judiciary have answered the reservation debate in last 60 years of our independence is increasingly important.
After independence, the framers of our constitution decided that the principle of divide and rule played by the Britishers have caused the partition of India and Pakistan. They believed that Government should play an active role in removing all forms of discrimination. To achieve this goal, they incorporated a number of provisions in the constitution as the inviolable fundamental rights. Shourie provides a detailed view on the fundamental rights against discrimination as in Article 14: right to equality, Article 16(1): right to equal opportunity in government employment, Article 16(2): " No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the state. For
Then Shourie provides detailed analysis of how Supreme Court interpreted Constitution in striking down different laws and some Judges accepting them by a liberal interpretation of the provision and making room for reservation. Whenever the court struck down any law, the legislatures were quick and alert to immediately change the constitution with unanimous voice and complete absence of debate on the floor. Specifically:
The first amendment in 1951 was actually carefully argued by Nehru and even B.R. Ambedkar on the pros and cons of this provision.
Article 15 (4) Nothing in this article or in clause (2) of Article 29 shall
prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes.
When Supreme court ruled that quotas in promotion means differentiating between equal class of people Constitution was quickly amended to:
Article 16 (4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
When Supreme court ruled that not more than 50% of the seats can be reserved in any year, the Constitution was amended to carry over unfilled reserved vacancies to other years:
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.
Supreme Court ruled in August 2005 that Government cannot prescribe its reservation policy to unaided institution. The Article 15 in the Constitution was amended in Dec 2005 to reverse that:
5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.".
Shourie book will make you thinking on some important questions:
1. Were other backward castes (OBC's) really "enslaved" by upper castes?
2. How discrimination based on caste started when our constitution does not allow it? How identification of backward classes was reduced to castes and how Supreme court accepted this argument even with a fractured verdict in the Mandal Case?
3. How legislatures have pushed India to have reservation in just everything from Government Jobs, educational institutions (aided or unaided) to even threatening to the private sector? How we have moved from 50% reservation in city colleges to highest institutions in the country?
4. Is there a way of providing social justice without abrogating fundamental rights on such a large scale?5. How SC has set the limit to 50% and on what argument?
Hope I have inspired you enough to pick up the book :)