Editor,
There seems to be a grave misunderstanding on the Reservation issue and the judgements delivered by the hon’ble Supreme Court on this sensitive issue. There is also a paranoia about the possibility of the apex court striking down the state’s Reservation policy. In this connection, I refer to a news item in your paper published on May 26, 2023 under the heading, “Education Minister fears Supreme Court will strike down quota policy,” As per this report our hon’ble Education Minister while expressing the above fears cited the Supreme Court order directing the Kerala government that any reservation should not exceed 50%.
Here, I would like to state that in the case of the Kerala government versus M.Thomas and others, the apex court while directing the Kerala government to stick to 50 % reservation has also provided exemptions under extraordinary situations. An extract from Para. 191 of the judgment will perhaps clarify matters:- “Decided cases of this court have no doubt laid down that the percentage of reservation should not exceed 50%. This, however, is a rule of caution and does not exhaust all categories. Suppose for instance, a state has a large number of backward classes which constitute 80% of the population and the government in order to give them proper representation reserves 80% of the jobs for them, can it be said that the percentage is bad and violates clause (4) under Article 16? The answer must necessarily be in the negative. The dominant object of this provision is to take steps to make Inadequate representation Adequate.”
The implications of the exemption in the above judgment are clear. Among other things, it implies that the 85% reservation adopted by Meghalaya is legally and constitutionally justified because Meghalaya has a tribal population of 85.9% and this tribal population is yet to be at par with mainstream India on many parameters.
Again, the hon’ble Education Minister referred to an ordinance by the Maharashtra government giving reservation to certain tribes beyond 50 percent which was struck down by the apex court. In this regard, it may be mentioned that several civil suits were filed in the apex court against the Maharashtra government and a five judge constitutional bench heard and delivered judgment on May 5, 2021. It may be noted that the apex court while directing the Maharashtra government to stick to 50 percent reservation once again provided exemptions after hearing the learned counsels from several states like Meghalaya, Jharkhand, Chattisgarh, Assam, etc where there are high percentages of tribal populations. During the hearing, the learned Attorney General of Meghalaya submitted that in our state there is a tribal population of 85.9 percent. He also submitted that reservation in Meghalaya is in accord with Para 810 of the Supreme Court’s Indra Sawhney judgment of 1992.
The said Para 810 says the following:-
” While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and its people. It may happen that in far flung and remote areas, the population inhabiting these areas, might, on account of their being out of the mainstream of national life and in view of the conditions peculiar to and characteristic to them need to be treated in a different way, relaxation in this strict rule may become imperative. In doing so, extreme çaution is to be exercised and a special case made out “.
Having noted the above judgment, that is, the Indra Sawhney judgment of 1992 and having heard the learned counsels of several states with high percentages of tribals, the apex court adopted as a precedent to be followed the criteria spelled out in the said Indra Sawhney 1992 judgment. Para 131 and 133 of the 5th May judgment in the above case of the State of Maharashtra versus several petitioners read as follows:-
131.”Thus greatest common measure of agreement in six separate judgements delivered in Indra Sawhney case is that :-
1) Reservation under Article 16(4) should not exceed 50%.
2) For exceeding reservation beyond 50% extraordinary circumstances as indicated in Para 810 of the Indra Sawhney case should exist for which extreme çaution should be exercised”.
133. “We thus do not find any good ground to revisit Indra Sawhney or to refer the same to a larger bench on the above ground urged “.
In light of the above, it is evident that the 50 % rule laid down by the hon’ble Supreme Court has not been cast in stone. In all the three cases cited above the hon’ble Supreme Court in its wisdom has allowed special exceptions, exemptions and considerations.
Regarding the March 2021 notice cited in your above news item which has been replied to by our government, I would like to state that on reading the Supreme Court judgment on a case between the Government of Maharashtra versus several petitioners mentioned several times above in which our learned Attorney General also represented our state, it has become apparent that the above Meghalaya government reply has been taken into account by the Supreme Court and further hearing on this will not be necessary.
Yours etc.,
Samuel Swett,
Shillong-2.
Reservation Policy Dilemma in the Khasi Hills: Call for Visionary Leadership
Editor,
The Reservation Policy in the Khasi Hills of Meghalaya has long been a topic of intense debate and controversy. Recently, this issue has gained renewed attention due to the mobilization of the masses by Bah Ardent Basiawmoit, who has resorted to an indefinite hunger strike in an attempt to compel the government to engage in a meaningful debate on the Reservation policy. Basiawmoit’s actions have unleashed a political storm, exposing the lack of vision and leadership displayed by both Khasi and Garo politicians in addressing this pressing issue.
Basiawmoit’s hunger strike has become a powerful symbol of the deep-rooted dissatisfaction among the people regarding the current Reservation policy. His act of protest has powerfully resonated with the masses, capturing their attention and shedding light on the urgency of finding a resolution. It serves as a stark reminder that the Reservation policy should be reviewed and revised in order to better address the needs and aspirations of the people.
The ensuing political storm reveals the absence of visionary leadership among the Khasi and Garo politicians. Rather than prioritizing the concerns of the people and seeking common ground, politicians seem more preoccupied with advancing their own interests and perpetuating divisions. This short-sightedness and lack of unity among political leaders further exacerbates the Reservation Policy dilemma, leaving the citizens disillusioned and marginalized.
However, amidst this turmoil, an opportunity arises for the government to demonstrate visionary leadership and unite the people of Meghalaya. It is imperative for political leaders to cast a compelling vision for a unified state, emphasizing the values of cohesion, inclusivity, and equal opportunities for all. By transcending divisive politics and promoting a collective identity, the government can foster a sense of belongingness and inspire citizens to work together towards a shared future.
One potential solution to the Reservation Policy dilemma lies in re-evaluating the current allocation of reservations. Rather than dividing the 80% reservation into two equal halves, with 40% for the Garos and 40% for the Khasis and Jaintia people, an alternative approach could be considered. This alternative suggests opening up the entire 80% reservation to all three groups, thereby creating an environment of healthy competition and fair opportunities. Such an allocation would incentivize politicians to prioritize the development of their constituencies and encourage constituents to strive for excellence.
By adopting this alternative solution, the government can promote fairness, meritocracy, and unity. This approach would not only address the reservations of marginalized communities but also cultivate a spirit of healthy competition among citizens, motivating them to work hard and reach greater heights. It would encourage politicians to focus on developing their constituencies and promoting the welfare of their constituents, rather than perpetuating divisive politics. But alas! Will the government even open up the avenues for discussion?
The government has a valuable opportunity to unite the three tribes and guide Meghalaya towards a future of inclusivity, growth, and prosperity for all its citizens.
Yours etc.,
Jonathan W. Iangrai,
Via email