People's Democracy

Mr Justice, We Want Social Justice

R Arun Kumar

THE Supreme Court in its interim order on the question of reservations for the OBCs has observed that “it would be desirable to keep in hold the operation of the Act so far as it relates to Section 6 thereof for the OBCs category only”. The peculiar wording of the judgement pronounced by the court here is noteworthy. This has led to the chairman of the Oversight Committee on Reservations, Veerappa Moily, to comment “Where did they (court) say they were staying the operation of the Act? They have not mentioned it… It is up to the government of India (to decide). If they (the government) feel that they can hold back the operation of Section 6 (of the Act) they can do so. Otherwise they can go ahead”. If the entire issue is so simple then did the entire media, political parties and legal experts miss this point?

Let us look at the immediate sentence that follows the above quoted one from the judgement. “We make it clear that we are not staying the operation of the statute, particularly, Section 6 so far as the scheduled castes and scheduled tribes candidates are concerned.” This clearly meant that the court is in fact staying the operation of the statute for the OBCs. This sentence is much more direct than the earlier use of the word ‘desirable’. Leaving aside the legal intricacies in the usage of a word or a phrase, a reading of the entire judgement makes clear the intention of the court.

It is not for the first time that the Supreme Court has stayed the implementation of reservations for the downtrodden sections of our society. The very first amendment to our Constitution was necessitated by the reluctance of the Supreme Court to allow reservations for the SC, STs in education. Explaining the reasons behind the moving of the amendment Pandit Jawaharlal Nehru, stated “In order that any special provision that the State may make for the educational, economic or social advancement of any backward class of citizens may not be challenged on the ground of being discriminatory, it is proposed that Article 15(3) should be suitably amplified”. This amendment also led to the insertion of Ninth Schedule in the Constitution to safeguard land reform acts. Unfortunately even after more than 55 years of the first amendment to the Constitution there are many ‘challenges’ for any special provision that is enacted for the advancement of the backward sections in our country.

MAKE DO WITH AVAILABLE DATA

One of the important reasons for staying the implementation of the Central Educational Institutions (Reservation in Admission) Act now is the absence of concrete data about the exact population of the OBCs. The court did not agree to go by the Census of the 1931 that the Mandal Commission has used to recommend reservations for the OBCs. Incidentally, the same court, but a bigger 9-member Bench, had allowed for reservations for the OBCs in employment – which was based on the same 1931 census used by the Mandal Commission – in its famous judgement in the Indra Sawhney case in 1993. Moreover, the 27 per cent reservation for the OBCs in employment was not decided according to the proportion of their population but taking into consideration the upper limit of 50 per cent that the court has set for the total reservations that can be provided to the disadvantaged sections in our society.

The collection of caste-wise census was stopped in our country after 1931. While the Second World War affected the overall collection of census in 1941, the first government of independent India barred the collection of caste-wise census, except for the SC/STs. The reason was that this might impede the transformation of the country into a casteless country. This decision can be better understood when one locates it in the background of the discussions that had taken place in the Constituent Assembly on the Report of the Advisory Committee on the Minorities tabled by Sardar Vallabhai Patel. This policy is continued till date and was one of the reasons for the rejection of the repeated requests of Mandal for conducting a caste-census. 

Even though there is no collection of data about the population of each caste in the country there are other sources that give us an idea of the number of OBCs in the country. According to the recent sample survey carried out by the NSSO, the number of OBCs in our country comes to roughly 41 per cent of the population. Both the opponents and proponents of reservation use this figure to suit their respective arguments. Many of the Backward Classes Commissions/Corporations in the states have collected data about the number of Backward Classes in their respective states and their total population. To take an example, the calculation made by the Commission in the state of Andhra Pradesh is around 52 per cent of the total population of that state. Likewise many other states too have similar data. The government could have used all this data in its arguments to present its case and the court too should (have) consider(ed) it. Moreover, it should not be forgotten that there exists reservations for OBCs in the state level institutions based on OBC lists in the respective states and the data thus collected. When these numbers can ensure reservations at the state level, the question is why cannot they be used to ensure reservations at the all India level?

DENYING RELIEF TO THE NEEDY

It is an undeniable fact that majority of these OBCs are poor artisans involved in various kinds of activities that are adversely affected by the neo-liberal policies. If anybody has a problem with the process of identification of the OBCs they should strive to correct the fault but should not try to put a halt to the entire mechanism of providing State support for them. The presence of few well-to-do sections among these sections should not make us conclude that the entire section of the OBCs is well off. ‘In the rural areas, the proportion of households in the highest Monthly Per Capita Consumer Expenditure (MPCE) class (i.e. those who spent Rs 1155 or more per month) was higher among ‘others’ category of households (12 per cent) than among the OBCs (5 per cent), SCs (3 per cent), STs (2 per cent). The proportion of urban households in the highest MPCE class (i.e. those who spent Rs 2540 or more per month) was higher among ‘others’ (13 per cent) category of households than among the OBCs, STs (3 per cent each), SCs (1 per cent)’ –– NSSO 60th Round. 

It is in this background some of the observations made by the court come out to be disappointing when it states that ‘there is competition to assert backwardness’. It is a fact that some vested sections in the society are trying to take advantage of the special provisions for the backward classes and are vying for the ‘label’. This is because of the myth that reservations can guarantee them a seat in an educational institution or provide them with a job opportunity. A study based upon NSS 55th Round shows that the unemployment rate among urban dalits is over 2 per cent higher than among other workers. There is no guarantee that reservations are a passport to employment opportunities. Moreover the above quoted income inequalities between various social groups make it that much more difficult for them to pursue education of their dreams. Reservations for these really backward sections provide succour to them even though they might be of temporary nature. The stay desired by the court denies this relief to those very sections who are in real need of them.

The court quotes approvingly the arguments of the petitioner and states that the ‘policy of reservations cannot be and should not be intended to be permanent’. In an ideal society where there exists equality – social, political and economic – and when our goal of ‘economic democracy’ is achieved nobody might need reservations. To put it simply, when the State (all its arms including the judiciary) can guarantee education for all and jobs for all, then reservations may not be needed at all.

Unfortunately, India today is far from that ideal condition. Moreover it should also be remembered that the list of the OBCs is reviewed periodically through a public hearing from which additions and deletions are done. By statute there is no permanency of reservations for any backward class. Even for SC/STs it is periodically reviewed and only then an extension is granted.

It is in the Constituent Assembly debates during the finalisation of our Constitution that it was decided that parliament would undertake periodic review of reservations. Participating in the debate, Nagappa has stated, “If, after ten years, our position happens to be the same as it is today, then, it is open to the parliament either to renew it or abolish it. This does not prevent you from coming forward within the next five or ten years or even two years with an Act of parliament saying ‘Harijans have been granted their demands, they are now on a par with others and they need not have this reservation of seats’.” If today we claim that we have come to such a situation in our country – in spite of the overwhelming evidence pointing to the contrary – that means one is living in an illusory world, totally cut off from the realities. The existence of sharp dividing lines on caste, religion and regional grounds in our society certainly mandate a pro-active State support for the disadvantaged sections. Reservations have proved to be one such important means.

It is unfortunate that the arguments of the petitioner stating that reservations are dividing the society found a mention in the judgement. This has given scope for a section of the overzealous media to propagate that this was the opinion of the court. Divisions on the basis of caste pre-date reservations, they co-exist with them and unless some concrete and drastic social changes are initiated, might continue for years to come. Reservations cannot be blamed for this. The feudal social order is the culprit. To blame reservations shows an upper caste, elitist bias and is intended to shift the blame from their shoulders to the already disadvantaged sections of the society. This is nothing but a plan to further perpetuate their deprivation in the name of non-existent equality. It is also unfortunate for the court to state, “by increasing the number of seats for the purpose of reservation unequals are treated as equals.” This in a way gives credence to the already debunked idea that reservations are against merit. Here it should be remembered that the court itself allowed the private managements to ‘reserve’ a certain per cent of their seats as NRI quota, put up for sale to the rich who are not necessarily meritorious. 

FUNDAMENTAL RIGHTS AND SOCIAL GOOD

Most of the social welfare measures that the State is forced to undertake due to popular pressure ends up challenged in the court of law by a handful of people. They claim these social welfare measures to be a curtailment on their fundamental rights. Unfortunately most of the times the courts too are mechanically interpreting the fundamental rights to overrule these welfare measures. This is becoming the order of the day more so in the era of neo-liberal reforms. Dr Ambedkar replying to the debates on the draft Constitution in the Constituent Assembly said “Because fundamental rights are the gift of the State it does not follow that the State cannot qualify them.” The qualifications to the fundamental rights are to be wholeheartedly welcomed if they are intended for the good of the majority and the advancement of the disadvantaged sections in our society. The qualification to the fundamental rights 15 and 16 providing for reservations is one such measure that should be commended and not condemned. These qualifications are also in line with the other equally important provisions in our Constitution – though legally not binding on the State – the Directive Principles. Article 46 and clauses 1 and 2 of Article 38 are two such directions that one needs to remember here. As Ambedkar had pointed out in his concluding remarks to the Constituent Assembly “Without equality, liberty would produce the supremacy of the few over the many, which is against the basic tenets of our Constitution.”

It is increasingly appearing as if the courts are giving credence to individual rights over the social good, which the directive principles seek to achieve. The Courts should try to answer the question that Ambedkar has asked “After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights”.

If the courts go on denying the basic urges of the common people and negate their hard-won rights it would adversely affect the functioning of our democracy. They should never forget the warning of Ambedkar “How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy…” It is high time for us as a society to really work for uplifting the downtrodden sections in our society.