Indian politics is considered to be competitive. This was visible while the 124th Constitutional Amendment Bill 2019 was getting passed by both the Houses of Parliament.
In spite of the fact that the main opposition parties knew that this bill was a political move by the BJP-led NDA government, they had to pass it.
Second, because of political compulsions, the BJP, which had opposed reservation during the Mandal agitation, is now desperate to get this amendment bill as early as possible before the election code of conduct (for the 2019 elections) is announced by the Chief Election Commission of India. Even though the bill has been passed by both the houses of Parliament, it needs scrutiny on various grounds.
A Violation of Constitutional Morality
At the outset, the ‘124th Amendment Bill 2019’, brought by the BJP-led NDA government for extending ten percent reservation to the ‘economically weaker sections’ of ‘General Category’ Indian society, is violative of constitutional morality.
This is so because of four reasons.
One, the government of the day is fully aware of the fact that there is no provision in the Constitution for providing reservation to the economically weaker sections of the upper-caste.
The constitutional experts in the government must be cognizant of the fact that Article 15 (4) of the Constitution lays down that, “Nothing… shall prevent the state from making any special provision for the advancement of any socially and educationally-backward class, or for the Scheduled Castes and Scheduled Tribes”.
Second, in the same vein, Article 16 (4) of the Constitution clearly stated that, “…nothing in this article shall prevent the state from making any provision for reservation… in favour of any backward class of citizens, which, in the opinion of the state, is not adequately represented in the services under the state”.
Third, another ground on which this bill is against constitutional morality is the 1992, Supreme Court judgment by a nine-member bench, (Indira Sawhney & others v. Union of India) which had categorically stated that, “A backward-class citizen cannot be identified on, and exclusively with, reference to economic criteria”.
Last, the government of the day and its constitutional experts are conscious that the apex court has also put a 50 percent cap on reservation, citing an exigency regarding the ‘basic structure’ of the Constitution.
In spite of a number of aforesaid provisions and restrictions laid down by the Indian Constitution and judicial system, the BJP-led NDA government has had the audacity to introduce such a bill without giving adequate time for legislative scrutiny of the Parliament, and discussions by the general public. That proves the point that this bill violates the cannons of constitutional morality.
Wrong to Equate Economic Backwardness With Historical Oppression
Apart from violating constitutional morality, this amendment is against the constitutional spirit of reservation, because it seeks to change the content and outcome of reservation.
We are aware of the fact that reservation is a means of dispensing social justice via adequate self-representation to the erstwhile excluded communities, who suffered injustices and discrimination.
That is why the framers of the Constitution extended the provision of reservations for Scheduled Castes (ex-untouchables) and Scheduled Tribes in the constituent assembly itself. Also they enshrined Article 340 in the Constitution for the identification of groups other than the SCs and STs, ie, Other Backward Classes (OBCs), who were not adequately represented in the institutions established by the government.
However, now this bill is extending the reservation to the ‘Economically Backward Sections’ for uplifting them (mostly those considered as ‘upper-castes’) economically, by giving them access to government jobs and education.
This means that this bill seeks to equate the sufferings of the Scheduled Castes and Scheduled Tribes, with the sufferings of the economically backward so-called upper caste groups.
Otherwise the government of the day would not have suggested more or less the same remedy, that serves as reservation for both the groups. This is an erroneous comparison.
Why SCs & STs Deserve Reservation
How can one equate only economically poor sections of society with those who have suffered exclusion because of at least four empirical criteria?
To elaborate, Scheduled Castes and Scheduled Tribes have suffered firstly because of their structural location, in which they were not even considered part of the mainstream social order. Second, because of their collective stigmatized and unalterable identity, in spite of achieving educational and economic mobility.
Third, these groups have suffered because of cumulative exclusion, meaning, simultaneous exclusion from various spheres of life – economic, political, religious, educational, cultural, and spatial, etc. Fourth, they have suffered a long history of exclusion which is about a millennium old.
In the same vein, to extended representation to 3,743 castes identified under the Mandal Commission, the Constitution has evolved the terminology of ‘Socially and Educationally Backward Class’.
This is also qualitatively different from the economic exclusion of the so-called upper castes. As far as the outcome of the reservations as envisaged by framers of the Constitution and present Parliament go, it has been reduced to a ‘poverty alleviation programme’, instead of dispensing social justice that provides adequate representation to the erstwhile excluded groups.
Equality of Opportunity Vs Equality of Condition
If implemented in letter and spirit, then reservation for economically poor sections will further breed inequality in society and deprive the excluded communities of social justice. It is so because, in an unequal and hierarchically-arranged society, ‘‘equality of opportunity” will offer advantage to those who are already socially and culturally ahead. In this case, the so-called upper-castes already possess social and cultural capital.
That is why, along with ‘equality of opportunity’, the framers of the Indian Constitution introduced the ‘equality of condition’, that is, reservation for the SCc and STs, so that those who were lagging behind would get a fair chance to compete with the social groups which were beneficiaries of the traditional systems. However, this bill will neutralise that mechanism.
This will again give advantage to the castes which had social and cultural capital. We cannot equate poor Dalit or OBCs with the so-called poor upper castes, because although the latter may be economically poor, the community is equipped with thousands of years of cultural and social capital. Hence this reservation is a retrograde move.
A Mere Political Gimmick
To conclude, the bill is a political stunt and gimmick, as evident from its timing and modus operandi. For instance, the government doesn’t seem to have a rationale behind determining the income on the basis of which the economically weaker section will be granted reservation.
How has it reached the figure of 8 lakhs (and below), or 5 acres of land (and below), to grant reservation?
Second, it has not told the members of both the Houses of the Parliament the exact numbers of people who earn Rs 8 lakh per annum or below, or possess 5 acres of land or below.
In the same vein, will the value of Rs 8 lakh or below, in Mumbai and say a village in eastern Uttar Pradesh be the same? Third, how can we compare five acres of land (or below) in Gurgaon in Haryana and in the rural areas of Odisha? Who will deny ‘equality of opportunity’ within the so-called upper castes, on economic basis?
These, and many more questions prove the point that this bill is a political gimmick in the wake of the 2019 general elections.
(Professor Vivek Kumar, is Prof of Sociology, JNU, New Delhi and former Visiting Professor, Columbia University, New York, USA. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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