In his recent book, historian Yuval Noah Harari remarked that in the present day world, people’s struggle is against irrelevance rather than exploitation. He said that “revolts will be staged not against economic elite that exploits people, but against an economic elite that does not need them any more”. (21 Lessons for the 21st Century, 2018).
Harari’s words indicate the reduced sphere of employment opportunities across the world in the public sector as well as in the private sector. This, however, does not reduce the significance of reservation in public employment. On the other hand, it does quite the opposite. When the avenues are reduced, the need for protective discrimination is only enhanced.
The 103rd amendment to the Constitution, which is inaccurately termed economic reservation, is now challenged before the apex court. The top court may also consider whether the matter should be referred to a Constitution Bench. The idea of 10 per cent quota for the ‘economically backward’ among the general categories is a contentious issue warranting a national debate.
It is trite that the reservation is neither an employment generation scheme nor a poverty alleviation programme. Caste is a constant whereas income is not. While the former remains a clear basis for compensatory discrimination due to historical reasons, the latter could be uncertain and fluctuating.
Let it be however taken for the sake of argument, that the new system is capable of identifying and emancipating the poor. Let it also be assumed that economic disadvantage is a sound criteria for quota in the realm of public employment. In that scenario, the question is whether the country can exclude a poor Dalit or an equally poor Backward Class citizen from the ambit of the new reservation scheme, which is meant for the “economically weaker sections”. The newly inserted Article 15(6) of the Constitution does exactly this exclusion. The amended portion says that the state is not prevented from making any special provision for the advancement of any economically weaker section of citizens other than the classes mentioned in clauses (4) and (5) of Article 15. The excluded classes make up 70 per cent of the nation’s population—referred to as Backward Classes or Scheduled Castes and Scheduled Tribes in clauses (4) and (5) of Article 15 of the Constitution.
The present reservation is exclusively meant for the forward communities. A new quota upto 10 per cent is offered by the newly inserted Article 16(6) of the Constitution. This would mean that when a Brahmin with a monthly income of `1,000 and a Dalit with a still lesser income compete for a post, the former would fall within the new 10 per cent zone whereas the latter will not, only for the reason that she is a Dalit.
Thus the exclusion is one solely based on a person’s backwardness in terms of caste which cannot stand the constitutional test, despite the amendment. That there is already a communal reservation for the Dalits does not legally justify the exclusion, since a Dalit who is economically backward has only lesser avenues when compared with her companion in the same community who is richer and relatively better placed. Thus the exclusion really works against the poorest among the backward and the Scheduled Castes and Scheduled Tribes. This ‘untouchability’ in public service emanating from the present amendment is deplorable.
The new quota rule is fundamentally flawed in yet another way. Every candidate who can claim communal reservation is essentially a general candidate. The general quota, in the legal sense includes the ‘meritorious’ among the backward and the scheduled communities, who do not require or who abandoned the benefit of communal reservation. To deny this ‘general’ status to them when it comes to the 10 per cent quota defies not only logic but also the equality clauses in the Constitution.
Gail Omvedt correctly said that the community-based reservation was meant to “end the caste-monopoly of organised sector jobs, especially of the public sector”. She explained that caste-based reservation, on its own, “will not end casteism but it may be a necessary condition for doing so”. It is this foundation of reservation which is now altered for the purpose of the new 10 per cent quota. This alters the ideological premise of the very concept of reservation.
Wealth, not the income, is a surer criteria for protective discrimination. As economists say, income is a flow, whereas wealth is a stock. The massive deprivation of resources, especially of land, necessitated an indemnification to the wealthless and the marginalised by way of better representation in public employment. Thus, the reservation, in the conventional sense, was not totally devoid of any economic criteria, as commonly perceived.
Poverty is however, a problem that should have economic solutions. The state can have varied policies for scholarships, concessions, loan waiver, subsidies, etc. in fields ranging from education to agriculture. But confusing poverty for historical discrimination and poverty alleviation for reservation in public employment is a grave mistake. And excluding the poor belonging to marginalised communities from the category of the “economically weaker sections”, solely based on their birth is a graver mistake.
Kaleeswaram Raj
Lawyer practising in the Supreme Court
Email: kaleeswaramraj@gmail.com