Revise Limit on Reservations Beyond 49 % argues PB Sawant, a former SC Judge

Making a strong case for extending the quota on reservations, Justice Sawant argues that the demand for reservations by Marathas, Jats and Patidars should be considered seriously.

The Mandal Commission has laid down additional tests for recognising social backwardness.

For some time now, the country has been witnessing agitations for reservations by communities like the Jats in Haryana, Patidars in Gujarat and Marathas in Maharashtra. One thing common to these communities is that they consider themselves of a higher social status because they are higher in caste ranking but are economically vulnerable. They are caught in a pincer. They have no bread at home, but are too proud to beg.

Take the case of the Marathas, who have been demonstrating in huge numbers across Maharashtra. The community constitutes 32 per cent of the state’s population. After the formation of the state of Maharashtra on May 1, 1960, the Marathas are seen in larger numbers compared to others, in all elective bodies. However, on account of their traditional economic and educational backwardness, they are disproportionately less in number in the non-elected, elite, competitive, and strategically key institutions and professions, which have been the traditional preserve of the higher castes and classes.

On the contrary, they are found in considerably high number in the menial occupations and services. They are the mill and factory workers, porters and mathadi workers, the unorganised workers and marginal farmers, class IV employees in offices, constables in the police and jawans in the army. They are also found in large number among the slum and hutment dwellers, the illiterates and those below the poverty line. Yet, they are not considered “socially” backward. The plight of the Jats and Patidars is not very different. It is against this background that we have to examine the insistent demand for reservations of these communities, in education and government services.

The controversy over the reservations for these communities centres around the present criteria for reservation: For “socially and educationally backward classes” and denied to other backward classes such as the “economically” backward classes. It also raises a dispute as to who should be called “socially” backward. There is also a dispute with regard to the percentage of the reservations.

Taking first the question of social backwardness, generally speaking those who are economically backward are also socially backward. The Mandal Commission has, however, laid down additional tests for recognising social backwardness. Even if we take into consideration those criteria, it will be difficult to deny these communities the “category” of the socially backward class. Yet, they are denied this label.

The inclusion of any community in the socially backward class is necessary only for giving it reservation for entry into the educational institutions, since Article 15(4) of the Constitution specifically mentions that the reservations for entry in the educational institutions is restricted only to the “SC, ST and socially and educationally backward” classes. Article 16(4), which permits reservations in the government services, does not restrict them to the above classes but extends it to “any backward class” which does not have adequate representation in the services. Hence only “economically backward class” which does not have adequate representation in the government services, is entitled to claim reservation under that article. It, however, appears from the court decisions that they have restricted the definition of the “backward class” in Article 16(4) to the backward classes mentioned in Article 15(4). In view of the clear language of Article 16(4), it is not legitimate to do so. Hence, while interpreting Article 16(4) as per its clear mandate, we have to include in it any backward class whether it is only economically or only socially backward. Thus interpreted, communities like the Marathas, Jats and Patidars will be entitled for reservation in government services if they are not adequately represented in them. There is no need to amend the Constitution for that. The state government by legislation or executive order can create a separate class of the economically backward and prescribe a reasonable quota.

However, regarding reservation in educational institutions, since Article 15(4) confines the reservations, among others, to socially and educationally backward classes, the classes which are only economically backward will not be entitled to the same unless there is an amendment made in Article 15(4) to include them specifically as a separate class. An easier solution could be for the state governments to create enough seats in educational institutions to accommodate all the aspirants. The present agitation is mostly on account of the high cost of education. Students from the SC, ST and OBC communities get free education, hostel and books. If these facilities are extended to all the economically backward students there will be no agitation by the others. It is possible for the states to extend such facilities free to all the economically backward classes, if need be by levying taxes.

Coming next to the question of the percentage of reservations to be kept in education and in services, at the outset it must be noted that no quota can be legally assigned to any particular caste or community. Attempts to do so will not stand legal scrutiny. The present limit of reservation is restricted to 49 per cent on the ground that reservations being an exception to the general rule of equality, it has to be less than the rule. It is necessary to have a fresh look at this premise. It is true that the exceptions have to be smaller than the rule. However, the question arises whether the reservations can be considered an exception to the rule of equality.

For centuries, this country has suffered gross social and economic inequalities. The mere number of the Scheduled Castes, Scheduled Tribes and OBCs (without the inclusion of such castes as Jats, Patidars and Marathas) is over 60 per cent of the population, according to estimates. (According to the 2011 census, SCs are 16.6 per cent and STs 8.6 per cent. OBC population estimates vary from over 40 per cent to 50 per cent). Studies have revealed that 77 per cent of our population does not earn more than Rs 20 daily. The sum and substance of this survey of backwardness shows that about 85 per cent of our population, if not more, is backward. In other words, backwardness is a rule and forwardness is an exception in this country.

The majority of unequals are living with a minority of equals. To treat unequals equally is as much injustice as to treat equals unequally. Hence, in this country, injustice is being already caused to an overwhelming majority, that is 85 per cent of the population.

The reservations are a means to bring equality and as such complementary to the principle and rule of equality, and not an exception to it. Thus viewed, the limit of 49 per cent placed at present on reservations is both in principle and in practice unjustified.

It is also unfair to think that reservations affect the quality of education and administration. The assumption underlying this contention is those who come from the backward classes are unintelligent, incompetent, substandard and non-meritorious. This assumption is an insult to the great majority of our countrymen. The backward classes have remained undeveloped and underdeveloped because of the denial of opportunity to them to blossom, and not because they are in any way inferior in intelligence, ability or talent. A survey of the cut-off marks for the open category, backward classes, most backward classes and Scheduled Castes in professional courses made by Era Sezhian, a former MP from Tamil Nadu, (The Hindu, October 8, 1990), and reproduced in this author’s judgement in Indra Sawhney versus Union of India is revealing. For instance, the cut-off marks for the MBBS course in Madras University was 95.22 per cent for open category, 93.18 per cent for backward classes, 89.62 per cent for most-backward classes and 83.98 per cent for the Scheduled Castes. Since candidates from the backward classes had secured the said marks while living and studying in adverse social and material conditions, it has to be admitted that they are superior in merit to the candidates from the open category.

Much of the progress this country has made so far is on account of the contribution of 15 per cent of the population belonging to the advanced classes. If the remaining 85 per cent had as much opportunity as the advanced classes, this country would have been more advanced than most countries of the world. The reservations are meant for empowering the backward classes to enter the advanced class. Hence, the limit of 49 per cent on reservation needs to be revised both on the principle of equality as well as the basis of the ground reality in the country. The controversy with regard to the limit of reservation can be resolved if the Supreme Court reviews and revises the said limit. It is also necessary to caution the backward classes that reservations cannot be their sole saviour.

(The writer is a former Supreme Court judge; this article first appeared in The Indian Express on October 31, 2016 and is being reproduced with the permission of the author)




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