The Parliament of India passed a constitutional amendment which modifies articles 15 and 16 of the Constitution. This is to provide reservation for economically weaker sections for admission to institutes of higher education, and jobs in the government and possibly in the private sector. Article 15 prohibits the State against discriminating on the basis of caste, race, religion, creed, gender or place of birth. Article 16 mandates that the State shall provide equal opportunity to all, irrespective of their caste, religion etc in matters of public employment. Both of these are part of the fundamental rights conferred by the Constitution to citizens of India. The reservation bill amends both these articles, by inserting a sub-clause.
That these articles were amended with very little prior notice, and almost no debate among people’s representatives is alarming to say the least. That there was near unanimity among all the members of Parliament is also remarkable. Across the political spectrum, there were no dissenting voices about the haste in which fundamental rights were being tampered. Were these amendments and implications thought through fully? The amendments say that the concept of “economically weaker section” for whom the reservation of jobs and seats will be given, will be notified by the State from time to time.
There was initial talk that the EWS would mean any household with an annual income of less than 8 lakh rupees. The government’s own National Sample Survey data indicate that 99 percent of the households may qualify for this reservation. Even the India Human Development Survey confirms this. If the reservation applies to nearly the whole population would that not make it vacuous? It would not make any material difference at all, despite such solid bipartisan political support.
There are several more basic issues to consider in the context of this new reservation. Firstly, the reservations codified in the Constitution for the scheduled castes and tribes, were aimed to undo historic social injustice. The objective was social empowerment, and to gradually erase the disadvantage of birth, which can take several generations. Caste comes with birth and is not same as economic status, which is ever changing. Hence the SC and ST reservation cannot be conflated with that which is made on the basis of economic status.
If a person is poor today, he or she can rise above the poverty line tomorrow. That is not possible for the SC and ST status. Affirmative action is always aimed at specific communities to correct for historic discrimination. Its aim can never be for improving economic status. That is the ambit of various welfare and anti-poverty programs. Secondly, even the SC and ST reservation was supposed to be extinguished over a period of time, as envisioned by the framers of the Constitution. But since that did not happen, and due to political pressure from popular agitations, the VP Singh government extended reservation to Other Backward Castes (OBC). The definition of OBC varies from State to State.
The reservations have now reached 49.5 per cent, which include 15, 7.5 and 27 per cent respectively for SC, ST and OBC. This has led to narrowing the scope for merit-based admission or jobs to government institutions. The Supreme Court has capped caste-based reservations at 50 percent, and even asked that the “creamy layer” of OBC be excluded. This narrowing the field for merit based-competition is what has fuelled angst and frustration among the “open category” aspirants.
The rich folk are already voting with their feet, when it comes to higher education. India is “importing” nearly 10 billion dollars of higher education annually, by sending students to foreign universities. Many of these students take expensive bank loans since they can’t afford the expenses. It looks as if the 10 per cent reservation, which got widespread political support in Parliament, seeks to address this constituency. But reservation is not a strategy to tackle an economic problem of scarcity – of jobs and seats. It also creates a defeatist narrative of “rationing” of a scarce resource, not one of expanding the pie.
Thirdly, the current amendment will imply crazy levels of de facto reservations in various States. For instance, in Maharashtra, it will be 78 per cent, because of the recent 18 per cent reservation accorded to the Maratha community. This latter was challenged in the Bombay High Court, which refused to intervene. Hence the matter will land up in the Supreme Court, and may languish, just as has happened in the case of Tamil Nadu. That’s because the Tamil Nadu Act which extends reservation to 69 per cent was placed in the ninth schedule, and is immune from the Supreme Court’s correctives.
Fourth is the practical matter of determining income for the purpose of qualifying as EWS. Only five per cent of Indians file income taxes, and hence have proof of income. The rest will have to secure an income certificate to prove that they fall in the EWS category. Imagine the scramble at the local Collector’s or tehsildar’s office for the certificate. The business of acquiring a caste certificate needed for jobs, seats and even for contesting elections is notoriously fraught with great challenges. There is evidence of a substantial number of fake certificates, necessitating a massive machinery for scrutiny, investigation and verification. The same may be needed for income certificates. Caste is permanent, but annual income is not. So, what happens when it varies from year to year?
Fifth, and perhaps more fundamentally, these two amendments meddle with the basic structure of the Constitution, and this is the basis of a petition that is already with the Supreme Court. Articles of equality before law (Sec14), non-discrimination (Sec 15), equal opportunity (Sec 16), freedom of expression (Sec 19) and right to life (Sec 21) should not be modified in any way that changes their spirit. The apex court will decide whether the present two amendments meet or fail this test. Lastly it must be said that while reduction of poverty and inequality are lofty goals and imperatives in the current times, the strategy should be through social and economic policies, and not through constitutional, and ultimately unworkable solutions.
Ajit Ranade is an economist and Senior Fellow, Takshashila Institution. (Syndicate: The Billion Press)