Blinding reservation code with vote-bank politics

Gujjars in Rajasthan, Patidars in Gujarat, Kurmis in Bihar, Kapus in Andhra Pradesh and now Jats in Haryana. In the last year, notable and similar patterns of violent protests to claim the backward class status by powerful land-owning communities have caused nationwide protests. Now, the Rajputs, too, have decided to launch a mass movement for reservation and soon the Kongu Vellalars, Kammas, Lingayats etc., will not hesitate from going on an identical protest for reservation.

Articles 14, 15 and 16 of the Constitution form our reservation code. Article 15(4) empowers the state to give reservation to any “socially and educationally backward class” (SEBC) of citizens and Article 16(4) permits the state to reserve posts for inadequately represented backward classes. This reservation code has been supplanted by judicially evolved doctrines such as “creamy layer”, “catch up rule”, “50% ceiling” etc., and the states have responded by crafting innovative techniques such as Most Backward Castes (Gounders etc, in Tamil Nadu), Special Backward Castes and Economically Backward Castes (Gujjars etc, in Rajasthan), Other Eligible Communities in Kerala, and Extremely Backward Castes and Mahadalits in Bihar.

The vision of the Constituent Assembly was very clear– to use reservation as a tool only for certain castes and tribes by temporarily scheduling them to uplift their social status after centuries of brahminical oppression. To use castes as vote banks, successive governments played with the reservation law to gain political advantage by nullifying judgments of the Supreme Court and tampered with the Constitution. Article 15(4) was inserted via the 1st Constitutional amendment to nullify the judgment in Champakaran Dorairajan (1950), Article 16(4)(a) was inserted via 77th amendment to nullify Indira Sawhney (1992), 16(4)(b) via 81st and 85th amendments to nullify Virpal Singh & Ajit Singh Juneja (1995), proviso to Article 335 was added by the 82nd amendment to nullify S Vinod Kumar (1996) and Article 15(5) was introduced via the 93rd amendment to nullify P A Inamdar (2005).

The Jat reservation agitation is not new to this domain. The National Commission for Backward Classes asked the Indian Council of Social Science Research in 2011 to ascertain the socio-economic status of the Jat community in nine states for inclusion in the Central list of Other Backward Castes (OBCs). Based on the report and subsequent public hearings, the Commission submitted its advice to the Centre in 2014 stating that the community did not fulfill the criteria for inclusion in the Central List of OBCs.

“Ordinarily binding”

The Commission found that though Jats were socially and educationally backward, they had adequate representation in the armed forces, government services and educational institutions. The then UPA government, immediately before elections, refused to abide by the “ordinarily binding” advice–as there is no provision under which the government can override the advice–of the commission and included the Jat Community in the Central list. Also, in eight out of the nine states, Jats were already in the state lists.

In Ram Singh (2015), the Supreme Court was engaged to review this decision of the Central government and it dismissed the notification by a reasoned order. Notably, in Para 54, the apex court recorded that inclusion of the politically-organised classes, such as Jats, is against the constitutional scheme. As promised by the current ruling establishment to attract Jat votes, the Central government vehemently contested the case and after dismissal went on to file a review petition. This review petition was outrightly rejected.

Time and again, governments have overturned decisions by the Supreme Court for political purposes in reservation cases. It will not surprise us if the Venkaiah Naidu committee recommends reservation for Jats to attract nine-crore voters from the community. The statutory NCBC, however, cannot be neglected and the issue needs to be referred to it for a fresh consideration. There has hardly been any change in the socio-economic conditions of Jats since the last report and a diametrically opposite view is highly unlikely.

Though our Constitution provides for equality, successive governments have blinded the provision in view of maintaining caste-based vote banks. Reservation for an adequately represented powerful agrarian community like Jats is untenable and will open the Pandora’s box for similar claims nationwide. The Constitution does not permit such violent and forceful claims for caste-based reservation to blackmail Parliament.

Though we have the Prevention of Damage to Public Property Act, 1984, and guidelines issued in Destruction of Public & Private Properties (2009), perhaps it is time reservation claims get adjudged by the Supreme Court through the telescopic “16-15-14 Code”. In Hardik Patel’s sedition challenge, the court has again decided to lay down guidelines for property damage during reservation protests. It must also be reiterated that reservation is not a matter of right. Articles 15(4) and 16(4) are only enabling provisions to maintain societal balance through reservation.

Fingers crossed as big constitutional challenges await redressal.

(The writer is advocate, Supreme Court)