How the Supreme Court wants to solve the reservation conundrum
Will the government accept the judiciary's solution?
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Mass politics brings messy results. The politics of reservation has plagued India. After a skirmish in 1951, the Supreme Court re-entered the fray in cases in 1963, followed by a plethora of cases decided by benches of various sizes.
The Mandal crisis resulting in a 9 judge bench decision in Indra Sawhney(1992) disciplined the reservations for the other Backward classes (OBC) and denied reservation in promotion for scheduled castes and Tribes (SC/ST). But Parliament was waiting in the wings to unsettle the judicially settled. SC/ST has special seats in the legislatures and panchayats.
Using its constituent power, parliament amended the Constitution to overturn the Supreme Court judgments by the 77th (1995), 81st (2000) 82nd (2000), 85th (2000) amendments. In Nagaraj (2006) the court upheld these amendments because they did not mandate reservation in promotions, or carrying over vacant posts or efficiency of service.
But if the State decided to use this power, they would have to show compelling necessity on backwardness and adequacy of representation, and take into account effect of efficiency, prescribing the creamy layer, restrict reservation to 50 per cent and avoid excessiveness.
Finding the balance is the role of the Supreme Court more so when the politics of reservation has lost its bearings completely. (Photo: PTI)
It should be noted that the Congress-led government did try and overrule Nagaraj by the 117th Amendment which passed the Rajya Sabha on 17th December 2012 but failed in the Lok Sabha. Various governments and SC/ST, therefore, tried to take another route so that Nagaraj would go to the larger bench and hopefully nullify Nagaraj. This background is necessary to explain the Jarnial Singh (26th Sept 2018) ruling that Nagaraj is good law and does not have to go to a larger bench except in one area.
Will Jarnail Singh put a quietus on reservation controversies on matters of promotion and carrying over vacancies?
Or will parliament again try to nullify Nagaraj and Jarnial by the thunder and lightning of amending the Constitution?
We know that many campaigns are made by castes and groups for SC/ST status. Note the violent clamour by Jats, Gujjars, Patels and others to join the reserved – of which the highest echelon is SC/ST. These movements destroy public property, cause mayhem.
The Party political view is unanimous that SC/ST should be treated differently because they have separate votes in election, parliament and legislatures. Take that out of the equation, the debate would be different. In my book, Reserved, I examined the debates on the pre-Nagaraj amendments.
The discussion is sparse with speeches saying: “No discussion”. “Pass it! Pass it”. This is not a constitutional discourse. But we also have to accept that SC/ST carry a huge stigma and are badly treated in immeasurably unjust ways. But for dealing with the stigma we have the strong statutes of 1955 and 1989 which fight against stigma.
SC/ST also have benevolent schemes. Sewage collection by the SC is deplorable. It has to stop. But in the matter of, equal opportunity to public employment (Article 16) a balance has to be struck which is precisely what the Supreme Court was doing from 1963 to now.
Finding the balance is the role of the Supreme Court more so when the politics of reservation has lost its bearings completely. Two pillars of the constitution are: accountability politics (political texts) and rule of law justice (justice texts). Without this, democracy will not be just and justice undemocratic.
To stop Parliament using its amending power indiscriminately, after the famous Kesavananda case (1973) the Courts are entitled to ask: Have you changed and violated the basic structure of the constitution which includes democracy, federalism the judicial power, equality, freedom, secularism reasonableness and so on. Nagaraj (five judges) was bound by the 1973 decision (13 judges) and other 5 and 9 judge benches. What was at issue was “equality” as basic structure taking into account social justice and bureaucratic efficiency.
Nagaraj felt reservation in these areas may continue but its exercise must be disciplined by the settled principles decided in the Mandal Sawhney. The latest Jarnail decision approves the method used by Nagaraj (blessed by a later 9 judge bench in 2007) as well as all the conditions compelling necessity (50 per cent excessiveness, creamy layer, efficiency, adequacy of representation. So no knee-jerk action can be taken by the government).
But one part of Nagaraj that was overruled as inconsistent with the 9 judge Indra Sawhney in that governments imposing reservation did not have to provide data for showing backwardness because the Constitution assumes that SC/ST are backward.
But Indra Sawhney also said that reservation in promotion was contrary to equality and carryover of vacancies must be reasonable (unlike the amendments). The law is now laid down with principled clarity.
The real question is whether the government will accept Supreme Court's decision. (Photo: PTI)
Win or lose?
In one sense both SC/ST and the general candidates.
The general candidates lost the argument on backwardness because SC/ST are constitutionally different. However, the SC/ST lost the argument that Nagaraj must be re-examined. They also lost the creamy layer argument and that data would have to be provided whether the SC/ST are adequately represented.
The mechanical formula that SC/ST should have reservation according to their population is also in doubt in these matters. But the real question is whether the government will accept this decision. Or will they now amend the Constitution again to overturn this Supreme Court judgment and the equality principles it is based on?
All political parties want to support SC/ST for electoral reasons. If they accept this verdict, a balanced "equalitarianism" can proceed. If not, politics will clash with justice.
(Courtesy of Mail Today)