Among the many points raised as objections to the 124th Constitution Amendment Bill to enable means-tested reservations was the contention that it was a direct consequence of the BJP’s defeat in Madhya Pradesh, Rajasthan and Chhattisgarh. The argument is not devoid of merit. During the campaign, particularly in Madhya Pradesh, the BJP discovered that there was a fierce reaction to the government’s decision to reaffirm the draconian provisions of the legislation on the prevention of atrocities against Dalits.
The reaction was strongest among poorer sections of castes not included in the caste-based reservations. This, coupled with the growing demand for reservations among non-OBC intermediate castes such as Patidars, Marathas and Jats, was a clear indication that the uneasy social consensus that existed on reservations since the implementation of the Mandal Commission provisions in the mid-1990s was on the verge of breaking down. It was entirely possible that the 2019 general election would have degenerated into regional caste conflicts.
Obviously, the return of caste to the top of the political agenda would have adversely affected the BJP the most. Narendra Modi’s appeal among voters depends, among other things, on his development plank and the ability to maintain order and stability. Caste appeal counts for very little in the endorsement of the prime minister but the resurrection of caste identities damages his electoral appeal.
The enabling amendment to accord 10 per cent reservation to the poor among sections not benefitting from caste-based reservation is an attempt to restore the consensus on reservations. It may or may not succeed in ensuring that dejected voters will return to the BJP but at least it may succeed in putting a lid on agitations by powerful social groups for quotas. It will also give Modi—if he secures a renewed mandate in the general election—the necessary breathing space to pursue his development agenda with single-minded vigour.
There is nothing wrong or immoral for governments to respond to electoral verdicts with either action or correction. That is what democracy is all about. A more interesting objection centres on the assertion that the Constitutional Amendment will not pass judicial scrutiny and will be struck down. This position is based on the belief that the Constitution is cast in stone and that the absence of means tested affirmative action in the pre-amended Constitution means that this is a permanent principle.
No doubt clever lawyers and scholars will quote at length from the proceedings of the Constituent Assembly to show that the Founding Fathers had considered the issue and not incorporated it into the final document. However, to assume that all political wisdom resided in the members of the Constituent Assembly and that the immediate post-Independence context is valid for all times is ridiculous. If the notion that all Constitutional principles are permanent is held to be true, the Republic will become completely dysfunctional and the Constitution with it.
The issue will, quite predictably, go before the Supreme Court. What the Court will have to decide is whether or not Parliament has the right to modify the Constitution, keeping in mind the inviolability of what is called the ‘basic structure’. To my mind, the only basic structure that is cast in stone is democracy—which naturally includes free and fair elections, qualified free speech and personal liberties. Everything else is negotiable, particularly matters to decide how and in what form the state will undertake the management of the economy and socio-economic relations with citizens.
In a sense, the issue boils down to the question of parliamentary sovereignty, and the opposition knows it, too. The Constitution Amendment was passed by both Houses of Parliament with more than the required two-thirds majority, evidence that there is an existing consensus that someone had to bite the bullet at some point. However, this will not prevent a section of the Congress trying to derail it in the courts to gain some political mileage before the elections.
I hope they don’t succeed because the issue goes well beyond voting preferences in the forthcoming general election. What is at stake is the wider issue of social harmony and an attempt to balance social justice with a conception of universal fairness. In the aftermath of the passage of the Constitution Amendment much of the criticism has centred on charges of haste and political cynicism. These may be valid, depending on the voting preferences of individuals. But these issues will be forgotten in a few months and overwhelmed by larger questions.
After all, how many people are still aware that V P Singh’s announcement of the acceptance of the Mandal Commission’s recommendations—incidentally, also a long standing demand and electoral commitments—was determined by a need to undermine a mass rally organised by his factional rival Devi Lal? In assessing events, it is best to look beyond what will certainly be relegated to footnotes.
Swapan Dasgupta is a senior journalist and Member of Parliament, being a presidential nominee to the Rajya Sabha.