The Supreme Court’s recent “opinion” on the revision of reservation lists and its coverage by mass media has created an impression that reservation was meant for the economic upliftment of Dalits and, therefore, those who have become economically “affluent” after getting the benefits of reservation should be separated from the category, so that the economically poor among them may also take advantage of the provisions. A relevant part of the court’s decision is cited below:
“Now there is a cry within the reserved classes. By now, there are affluent and socially and economically advanced classes within Scheduled Classes and Scheduled Tribes. There is voice by deprived persons of social upliftment of some of the SCs and STs, but they still do not permit benefits to trickle down to the needy. Thus, there is a struggle within, as to worthiness for entitlement within reserved classes of SCs and STs and other backward classes.
In our opinion, it was rightly urged by Dr. Rajeev Dhawan that the Government is required to revise the lists. It can be done presently without disturbing the percentage of reservation so that benefits trickle down to the needy and are not usurped by those classes who have come up after obtaining the benefits for the last 70 years or after their inclusion in the list.”
The observation was made by a five-judge bench headed by Justice Arun Mishra in Chebrolu Leela Prasad Rao & Ors. v. State of A.P. and Ors. on April 22, 2020. The economic angle to reservation is explicit in the above observation. Let us investigate whether the views correspond to the intention of the constitution-makers. Article 16(4) of the constitution of India which provides for reservation reads as follows:
“Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
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Article 16(4) renders it clear that reservation was enacted to ensure adequate representation of backward classes in the public services. A corollary to adequate representation is “sharing of state power”, and the same was accepted as an objective of the provision in the Indra Sawhney (1992) judgment. Sharing of state power by the downtrodden was necessary because at the time of independence, the administration had been controlled by one community or a few communities only, as Ambedkar pointed out before the constituent assembly. However, why could the other candidates not join public services?
The delegates present in the constituent assembly enumerated different reasons for it. For instance, R.M. Nalavade and P. Kakkan shared their experiences and said that Harijans and candidates of other depressed classes are not selected. Explaining the saga of discrimination, H.J. Khandekar stated that:
“The condition is so deplorable that though the candidates of the scheduled castes apply for certain Government posts, they are not selected for the posts because the people who select the candidates do not belong to that community or that section.”
Thus, it was not economic poverty but caste that accounted for their deprivation of government jobs. In such a situation, reservation was the only option to ensure entry and adequate representation of the candidates of SCs and STs in the state apparatus. Realising the inevitability of reservation, A.A. Khan opined before the constituent assembly that,
“…in case state services are monopolised by one particular class, then others might think that their existence has been ignored. This very idea will become a source of creating unpleasantness in the country”.
Thus, in no case was reservation seen as a device to eradicate poverty, nor was it demanded in favour of the economically poor. It was brought in because without reserving a certain number of posts, the selection bodies which were monopolised by the so-called upper castes, would not recruit Dalits due to their ingrained class-bias.
In this context, another lingering question arises over how to define the expression “backward class” under Article 16(4) for whom reservation is to be provided. Though, Article 16(4) leaves it to the state to determine (by using the words “in the opinion of the state”), however, the drafting history of the provision may be a useful source to interpret the meaning of the term “backward class”.
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Before the assembly, some members suggested that SCs, STs and Harijans are “backward classes”, while others advocated few tests, such as inability to protect one’s interests; and social, educational or cultural backwardness. A few of them also emphasised upon economic and religious backwardness, however, reading the negotiating history of Article 16(4) as a whole, as explained above, it is evident that economic backwardness was neither an independent nor a dominant factor to qualify for reservation. In this connection, the nine-judge bench affirmed in the Indra Sawhney (1992) judgment, that in the enactment of Article 16(4),
“…the accent was upon social backwardness. It goes without saying that in the Indian context, social backwardness leads to educational backwardness and both of them together lead to poverty—which in turn breeds and perpetuates the social and educational backwardness.”
The bench further held that:
“…by the speeches of Dr. Ambedkar and Shri K. M. Munshi, it was made clear that the “class of citizens…not adequately represented in the services under the State” meant only those classes of citizens who were not so represented on account of their social backwardness.”
Thus, the entire debate on reservation centred around social backwardness and the victims of various forms of caste-based discrimination. Sadly, such people were bound to be poor too. Therefore, reservation was never aimed at economic empowerment of the poor. The idea was always to disavow caste-monopoly in the public sector.
Besides the economic criterion, the members of the constituent assembly also discarded the proposals to permit reservation in a time-bound frame and envisaged its continuity until factors causing social backwardness e.g. non-representation or poor share in the state services come to an end.
The constituent assembly, in one of its meetings. Photo: Journal of Indian Law and Society/The Wire
The issue of cessation of social backwardness needs to be analysed with respect to the Supreme Court’s recent opinion on the revision of reservation lists. The five-judge bench opined, though without presenting any empirical data, that now there are “affluent and socially and economically advanced classes” in SCs and STs also, who should no more be permitted to avail reservation. This opinion needs to undergo a reality check.
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Are the SCs and STs adequately represented in the higher echelons of the civil services, academia, judiciary – both the Supreme Court and the high courts – police, policy-making, and other public services? Does employment in lower cadres indicate economic affluence and the end of social backwardness? Has caste-based discrimination been completely wiped out from the Indian society? Has upper-caste monopoly in public institutions vanished in its entirety?
The answers to all these questions is a big “no”. In fact, the appointment of a Dalit judge in the Supreme Court after almost a decade and his critical absence in the five-judge bench deciding on reservation is telling of the misery of affluence and representative character of the public institutions.
It is during crucial moments like this, that we feel compelled to recall the rich traditions of the constituent assembly where the depressed classes were not just represented by their delegates, but they even permitted extra time to voice their concerns. During the deliberation on the drat article relating to reservation, Khandekar rose before the assembly and urged that:
“The speakers here are mostly Harijan speakers and they require some time to explain the situation. I would therefore request you (the Chair) to increase the time limit so that they can explain and support this article very well.”
The vice president agreed to the request.
(I am thankful to Anumeha Mishra, Haris Jamil and Sujith K. for their suggestions.)
Kailash Jeenger is assistant professor, Campus Law Centre, Faculty of Law, University of Delhi.