In September last year, the Supreme Court for the first time extended the “creamy layer” concept to the affluent among the Scheduled Castes (SC) and Scheduled Tribes (ST).
Although the judgment dealt with a case regarding reservation in promotion for SC/ST government employees that challenged a 2006 order of the apex court (M. Nagaraj & Others vs Union Of India), it signaled what the judges were unanimously thinking about: having an economic criteria for reservation, not just for the Other Backward Classes (OBC), but also SC/ST communities.
Essentially, the Supreme Court questioned Articles 15(4) and 16(4), which do not mention economic status as a criteria for the special provision of reservation.
Along with the introduction of a “creamy layer” for OBCs and the creamy layer for SC/ST employees in promotion, this was the third major step in emphasising “economic criteria” for providing reservations, contrary to what the Constitution envisions.
The Bill was cleared with a thumping majority in both the houses of parliament. It was drafted even in the absence of quantifiable data on the under-representation of the “economically weaker sections,” as the Bill calls it.
Constitutional experts are calling the Bill a “non-starter”. An quota based on economic status that will surpass the cap of 49.5% will crumble under judicial scrutiny, they argue. It may very well be true.
But regardless of whether the 10% reservation Bill gets the Supreme Court’s nod, it is bound to have far reaching consequences.
Reservation will be reduced to a poverty alleviation scheme
The fundamental idea behind reservation was to diversify and represent the vast sections of India’s marginalised classes, regardless of their wealth.
The opposition to the current reservation system stems from an argument that some wealthy families enjoy reservations, while other poor families do not. This is silly, because individual families do not constitute any class.
The present decision by the Modi government solidifies the myth that equates individual families to a class.
The Supreme Court, in the past, agreed that “caste can be class of citizens that if that caste satisfies the requisite tests of backwardness, then the classification of that caste as a backward class is not opposed to Article 16(4) notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average”
The makers of the Constitution believed that discrimination based on caste is independent of economic status. Matrimonial ads stating “SC/ST excuse” or Shudras being barred from entering temples confirms that caste bias remains deep rooted even today.
In a recent sting operation conducted by India Today, priests of various temples were caught saying that they will not let even rich Dalits touch the deity. Atrocities against Dalits, including opposition to marriage processions, is also rampant.
However, the current discourse makes one believe that poverty drives discrimination and marginalisation, which is not the case.
The Bill makes the affirmative action programme look like a poverty removal scheme, as opposed to a tool that empowers the disadvantaged classes through representation.
Rejection by the SC can create unrest
Modi’s savarna voters were of the firm belief that he will abolish caste-based reservation.
The 124th amendment was received with jubilation by his savarna supporters. But it is likely that the Supreme Court could strike it down, citing earlier judgments about the 49.5% cap on reservations or having quantifiable data about the “economic” criteria to grant reservations to general category.
This can actually result in increased resentment against the Apex Court and the BJP will be quick to capitalise on it. The party has similarly politicised the Supreme Court’s delay on hearing the Ayodhya case or its verdict to open the Sabarimala temple to women.
In the Ayodhya case, the Sangh parivar made several objectionable references to the apex court, with senior RSS functionaries flaying it over the delay. The BJP left no stone unturned to incite Ram bhakts against the highest court.
The RSS-BJP, can make a section of the savarnas turn against the courts if the amendment is struck down. Prakash Ambedkar of the Bharipa Bahujan Mahasangh correctly warned that if the savarnas’ illusionary hopes raised by Modi are dashed by the Supreme Court, these sections are bound to turn against the institutions. That is precisely the RSS’s long term goal – weakening democratic institutions.
This amendment will help achieve that, whether it passes the court test or not.
Bill will open Pandora’s box, may well curtail SC/ST reservation
Modi and the BJP have on several occasions affirmed that they will not allow scrapping of SC/ST/OBC reservation. If the 124th amendment is upheld by the Supreme Court, it will open a Pandora’s box on the course of social justice in India.
Soon, there could be a cry to increase the percentage of reservations for economically weaker sections on the pretext that it is inadequate to the percentage of ‘poor’ among the upper castes. Or, there could be a demand to level the playing field by introducing an income limit to SC/ST reservations also.
Arguments like, “If open category quota is getting capped at a certain income level, then how can they compete with SC/ST who are richer than them?” could be made. This can lead to numerous litigations in the Supreme Court to have economic criteria inserted even for entry-level jobs and educational institutions.
The Supreme Court itself lacks diversity. The judiciary, presently consisting a majority of upper castes, has shown an inclination towards introducing the creamy layer concept for SC/ST reservation. The 124th amendment, passed with a thumping majority, can set the stage for this restriction.
Thus, economic status – not caste – will soon become the basis for reservations. This could mark the beginning of the end for social justice in the form of caste-based reservation.
In September 2015, RSS chief Mohan Bhagwat called for a review of reservation policy by an apolitical committee. Modi has just taken the first step towards this process by introducing an economic criteria.
Parties like the Congress, BSP and SP may have supported the 10% quota as political strategy, but in doing so, they have indirectly aided an attack on the Constitution’s basic structure. The marginalised communities (SC/ST/OBC) are not adequately represented despite 70 years of affirmative action. Savarna communities continue to dominate the public sector.
Instead of drafting a law to reinstate reservation in promotion for SC/ST employees or filling the backlog of SC/ST and OBC vacancies, the Modi government has chosen to provide reservation for the same social class that dominates all fields.
Sadly, no opposition party mounted sufficient pressure. Time will tell whether the Supreme Court will uphold the amendment or not.
In either case, the RSS and BJP will have achieved their short term and long term objectives.
Ravikiran Shinde is an independent writer on social and political issues.