Is there no limit?
Far from being inspired by social justice, reservations have become a political toy to support vote banking. Over the last fifteen years, politicians have enacted five constitutional amendments to reverse Supreme Court judgments. In turn, the Supreme Court has lost its way – seemingly backing off, backing down, giving up.
The latest Supreme Court endeavour is Chief Justice Kapadia’s order (also for Justices Radhakrishnan and Swatantra Kumar) permitting Tamil Nadu (TN) to continue 69% reservation for Scheduled Castes and Tribes (SC/ST) and Other Backward Classes (OBC) under its 1993 legislation, but asking TN to review its decision on the basis of quantifiable data. This seems surprising because it was Justice Kapadia’s own judgment in Nagaraj’s case (2006) which jettisoned reservations within a strict discipline before reservations were made and not as a statistical afterthought.
The judicial effort to discipline reservations goes back to 1951, but in our context began its rigorous journey from Justice Gajendragadkar’s judgment in Balaji (1963) establishing the 50% norm and striking down Mysore’s 68% reservation. Apart from SC/ST, the reservation provisions for OBCs were designed by the Constituent Assembly for the ‘south’ states which had practiced reservation for decades to cover traditionally recognized OBCs in their states. But to the ‘old’ OBCs were added ‘new’ OBCs. The new OBCs were discovered in the ‘north’, especially in the states of Bihar and UP resulting in the triumph of the Yadavs – Laloo in Bihar, Mulayam in UP and others elsewhere. Now everyone is busy discovering new OBCs. While the Karlekar Commission (1955) did not want to open the OBC cauldron, the Mandal Commission (1980) was only too glad to do so. The Mandal report was a hot potato which the Congress avoided and V.P Singh embraced in 1990 with disastrous results. The hitherto docile ‘merit students’ exploded into riots. Enough was enough. Peace was restored. The Supreme Court contributed to devising the peace process by a balanced formula in the Mandal case (1992) reiterating the old Balaji 50% limit for reservations. No doubt the 50% limit can only be crossed for compelling reasons. But this going beyond 50% was really for tribal states and not as a general political excuse to garner votes, which it has become.
Meanwhile, Congress realized that it had been upstaged by other political parties in using and manipulating reservations for votes. From 1995 – 2005, it was party to the 77th, 81st, 82nd, 85th and 23rd constitutional amendments for SC/ST and OBC reservation – realizing that the SC/ST constituency was also slipping from its hands. This is self evident from the parliamentary debates – a fact fully analysed in R. Dhavan’s: Reserved (2008).
What is significant is that these amendments were challenged in Nagraj (2006) concerning reservations in the civil services, where the lead and only judgment was by Justice (now Chief Justice) Kapadia. Earlier in the 11 judge bench decision in TMA Pai relating to education, the court fixed 50% as the upper limit which could be crossed only if there were justifiable, compelling circumstances. In fact, it would be fair to say that every percent reservation over 50% needs total comprehensive justification.
As it happens Nagraj (2006) was a written by Justice Kapadia. It concerned examining whether the constitutional amendments of 1995 – 2000 violated the ‘basic structure’ of “equality”. Read between the lines, it was a brilliantly statesmanlike decision. It told Parliament that its amendments were valid since they did not guarantee reservations but simply enabled them. It told merit candidates that equality was part of the basic structure of the constitution and, therefore, any exercise of the power of reservation would be subject to the 50% rule, the creamy layer, extent of backwardness and demands of the efficiency, in accordance with the criteria of reasonableness and compelling necessity.
Why did Justice Kapadia not follow his own judgment in the case of the Tamil Nadu’s 69% reservation? It is true that the Tami Nadu statute had been given extra constitutional protection. But after Justice Sabharwal’s judgment in Coelho’s case (2007), this extra protection had been ripped down. The Tamil Nadu statute was of 1993. It was 17 years old. A mandatory exercise of re-examination was necessary. This was not done. Under Justice Kapadia’s own test, Tamil Nadu’s 69% was beyond 50%. No compelling necessity had been shown. The creamy layer test is that those SC/ST or OBC is that who are no longer backward are disentitled to reservation. This has not been applied to SC and ST in Tamil Nadu. No considerations of efficiency have been considered.
One way of looking at Justice Kapadia’s decision on Tamil Nadu reservations is that, Tamil Nadu’s law enables 69% reservation. Before implementation, the ‘Nagraj’ restrictions of 50%, creamy layer, efficiency etc. would apply with full rigour as a prelude to implementation. But this turns Justice Kapadia’s own Nagraj decision upside down. The Tamil Nadu statute was all ready for implementation. The 69% had been, and was, being implemented. None of the Nagraj tests were being applied. This, it seems that Tamil Nadu had a free run subject to judicial advice that it must examine the extent of backwardness. But if the 69% statute was declared valid by the Supreme Court, no High Court could ignore it and all governments would implement it. The cart was before the horse and reservations at 69% would remain where they were.
While all that I have said sounds full of technicalities, in fact it is not so. Few are against reservations in toto. I am not against reservations. They are necessary for social justice and to share the power of the state with SC/ST and OBCs. But we have to find a balance. Spurred on by vote bank considerations, politicians do not want to find a balance. It has been upto courts to do so. The 50% marker came in 1963. The excursion of the creamy layer came for OBCs in 1992 and 2006 for SC/STs. Efficiency was emphasized in 1992 and against 2006. Reservations in super-specialties, technical areas or the army are not permissible. Both, the imposing of reservations and the breach of the 50% requirements are subject to compelling necessity and reasonableness. The creamy layer test was absolute. Efficiency had to be considered. Developed for 5 decades, these tests provide a balance so that the competing claims of reservations and merit are satisfied. Politicians abhor this balance because it interferes with their political vote-gathering largesse.
The 69% quota means that merit candidates have only a 31% chance; and SC/ST and OBC candidates can also compete for these 31% seats. This violates equality of opportunity. It also gives efficiency a go-by by disproportionately discounting merit.
India’s Constitution has both political as well as justice texts. If the justice texts were not there, majorities in legislatures would do whatever they want in the name of a crude numerical majoritarianism without reserve. The reservation debate has exhausted itself. Tamil Nadu’s 69% statute has been wrongly declared valid. But all is not over. The Supreme Court and Madras High Court can still insist that the amendment should not be implemented without looking at backwardness, the creamy layer and efficiency in terms of reasonableness and compelling necessity. But will they?