Tuesday, December 5, 2023



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By Bhogtoram Mawroh

With nearly all political parties having expressed satisfaction on the issue of the implementation of the roster system for jobs, the issue that has raised a lot of fear and uncertainty over the last few months is almost over. I say almost because the issue of reviewing reservation policy remains, spearheaded by only one political party, with the rest not keen to raise the issue. And there is a good reason for that as well. There is a fear not just of creating inter-ethnic animosity between the Khasi-Jaintia and the Garo, but also of putting at risk the benefits that both currently enjoy under the present policy. These are very genuine concerns and the fear of both coming true is very high. We have already seen the consequences of mistrust playing out in Manipur. As for the second, I will discuss it in greater detail in this article. But before coming to that, it will be fair to understand the arguments made by those who are arguing for a review.

The demand for reviewing the current reservation policy is based on the argument that the Khasi-Jaintia should have a higher share because of their larger share of the total tribal population (46% as compared to 31% of the Garo), as reported in the 2011 Census. This, it is argued, is based on the Resolution of the Reservation Policy as promulgated by the Government of Meghalaya on January 12, 1972. In that resolution, it has been stated that “in pursuance of Clause 4 of Art. 16 of the Constitution and keeping in view the inadequacy of representation of these communities in the services under the autonomous State of Meghalaya in terms of their population, consistent with the maintenance of efficiency in administration, the following reservation shall be made of the Scheduled Tribes and Scheduled Castes in posts and services in connection with the affairs of Meghalaya which are filled by direct recruitment”, i.e., 40% each for the Khasi-Jaintia and the Garo with 5% for the other Scheduled Tribes. There are certain issues that need to be discussed when reading this passage.

To begin with, the resolution makes reference to Clause 4 of Art. 16 of the Constitution, which mentions that the state can make provisions for the reservation of appointments or posts in favour of backward classes of citizens that, in the opinion of the state, are not adequately represented in the services under the state. The focus here is on backwardness and a lack of representation in jobs (services), not demography. But what the clause does mention, which is also used by the resolution issued by the government of Meghalaya, is the inadequacy of representation in the jobs. In 1971, the total ST population was 80% (Khasi-Jaintia, Garo, and other groups), but for sure, their representation in government services would not have reflected that. Therefore, the early leaders justified the 80% reservation based on the state’s ST population on the ground of inadequate representation, although the issue of demography was not itself mentioned in the Constitution. This sleight of hand can be termed a masterstroke for creating the conditions required to ensure that the local indigenous peoples will take care of the administration of the state, ensuring that it is amenable to their concerns. But while this move ensured the protection of the rights of the Khasi-Jaintia and the Garo, it took away the rights of other ST groups in the state.

The 2011 Census revealed that Khasi-Jaintia constitutes 46% and the Garo around 31% of the total population, i.e., 77% of the total population in the state. So, when it comes to jobs, the 3% that the Khasi-Jaintia and Garo are enjoying is coming from those meant for the minor ST groups. The 2011 Census also revealed that the non-indigenous population of the state, i.e., the non-tribals have been experiencing a decline in their population since 1971. Their population has declined from 19.52% in 1971 to 13.85% in 2011. This means that while the population of minor ST groups is almost 10% of the total population, they are getting only 5% of the reservation, or half of what they deserve based on the population figures. So while population logic has rewarded one group, i.e., the Khasi-Jaintia and Garo, it has punished the other, i.e., the minor ST groups. This might seem like a very minor issue, but it has the potential to create complications when the case of the review of the reservation policy goes to court. It is naive to imagine that Garo will not file a legal appeal if the current policy is reviewed. If the issue goes to court, there will be many more complications that may arise.

The first problem that might arise is the creative use of Clause 4 of Article 16 of the Constitution, which might be scrutinised by the courts in greater detail. Reservations will remain, but the court might ask, “Why do the Khasi-Jaintia want more reservations?” They might also ask, “Does their demand stem from the fact that their representation in the services has been inadequate?” The answer to this is going to be very tricky. The whole uproar over whether the roster system is going to be prospective or retrospective from the Khasi-Jaintia is that it will lead to more jobs going to the Garos in the future. The question is, “Why would that happen?” If the Reservation Policy mandates that 40% of the jobs are reserved for Khasi-Jaintia and Garo, the issue of the roster being prospective or retrospective does not arise. However, it has been acknowledged that because of the Garo inability to fill up their seats, the majority of the jobs have actually gone to the Khasi-Jaintia, which includes those from the minor ST groups as well. So, if a roster is prepared and it has to apply from 1972 to bring about equal representation in the realm of services, Garo might possibly get more seats in future since they are under-represented. So, the court might observe that the demand for reviewing the reservation policy is not about bringing parity based on population but to maintain the dominance of one group over the other. Since the policy of reservation is meant to uplift those who are unrepresented and marginalised, one wonders what the court might make of this finding.

There are many possible scenarios that might play out once the court has looked at all the issues. The first is that the court may rule that any change in the original scheme must be undone. In this scenario, the system goes back to the 40:40:5:15 formula. The other scenario is that the court might decide that since the Constitution does not talk about population size and the formula used in Meghalaya has distorted the original meaning of the passage from the Constitution, the old reservation policy should be dismantled and a new one formulated with the reservation cap set at 50%. This will be based on the 1992 judgment of Indra Sawhney v. Union of India, which directed that reservations granted under Article 16(4) should not cross fifty percent, except in exceptional circumstances.

Some who will argue that after the Supreme Court upheld the validity of the quota for Economically Weaker Sections (EWS) by extending reservation up to 59.5%, the 80% reservation will also be upheld. The judgment given by the Supreme Court, however, held that the breaching of the ceiling can be justified only if it does not violate the basic structure of the Constitution. Justice Dinesh Maheshwari further clarified that while the 50% ceiling is flexible it has to be outside the context of reservations under Article 15 (4), 15 (5) and 16(4) which deal with reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes. Reservation in Meghalaya has been done under Article 16(4) so it cannot breach the 50% ceiling. So there’s a high possibility that the court will strike down the old reservation formula and reduce it to 50% for all STs (Khasi-Jaintia, Garo and other ST groups) leaving 50% open for all.

This might be welcomed by some initially on the premise that since 50% will be open to all ST, the Khasi-Jaintia, by virtue of merit, will capture most if not all the seats. What this kind of reasoning ignores is that this is not 1971 but 2023. While the Garo and other minor tribes are less advanced than the Khasi-Jaintia, the gap is not very wide. Also, depending on context and the total number of posts advertised for specific positions, the total number of seats that the Khasi-Jaintia might get based on merit might be just over half of the 50%, less than what they are currently getting. In the open category there is again no guarantee that the seats will go to the Khasi-Jaintia because they will be competing not just with the Garo but other groups, ST and non-ST as well. The old system at least ensures that a minimum of 40% is guaranteed for the Khas-Jaintia which will not be the case in the new system. Are the Khasi-Jaintia prepared to take that risk?

However, this is just my personal opinion, and people are free to ignore it. This is a democracy and everyone has the right to make demands which they feel are justified. For the common people, though, it is important to be aware of the ramifications of any demand. After all, when everything settles down, it is the common people who will have to pick up the pieces of any mistakes that are made. So, my request to all is please be careful.

(The views expressed in the article are those of the author and do not reflect in any way his affiliation to any organization or institution)

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