Unconstitutional Meghalaya Reservation Policy


By Mikrak Marak

 Wikipedia defines Reservation as a system of affirmative action in India that provides historically disadvantaged groups representation in education, employment, government schemes, scholarships and politics. Based on provisions in the Indian Constitution, it allows the Union Government and the States and Territories of India to set reserved quotas or seats, at particular percentages in Education Admissions, Employments, Political Bodies, Promotions etc, for “socially and educationally backward citizens”. Further for the disabled the Indian Constitution provides for the right to equality under Article 14, which allows for “reasonable discrimination”, which has two sub-categories, namely, equality before the law and equal protection of the law. As the name suggests, equality before law means “everyone is equal before the eyes of the law and shall thus be treated equally.” However, equal protection of law means, “likes be treated alike but unlike shall not be treated alike”. For instance, in an examination, the time duration is two hours for students with no disability, but it is four hours for blind students. This is “reasonable discrimination,” which is to bring the unequal to the same pedestal as the equals and then treat them equally.

Furthermore, clause (4) of Article 16 of the Constitution on which the Meghalaya Reservation Policy is based on, states that the State shall not be prevented from making special provisions for reservation in the appointments in state-related services to any backward class of citizens, who the State thinks is not adequately represented in the State services. Under clause (4) of Article 16 the government is free to provide reservation if it is satisfied on the basis of quantifiable data that backward classes are inadequately represented in the service. Therefore, it is very clear, that in every case where the State decides to provide reservation, there must be two qualifying circumstances, namely, “backwardness” and “inadequacy of representation.” “If the States fail to apply these tests, the reservation would be invalid.” In fact, Article 16 (4) is applicable only if the following two conditions are met: (1) The class of citizens is backward, and the said class is under-represented in State Services; (2) The class of citizens is under-represented in State Services. Therefore, keeping the above constitutionally mandatory requirements for reservations in mind, the political assertions of certain groups in our state, for the review of the reservation policy, based on population, is a legally invalid demand, which will not withstand judicial scrutiny.

That, in all fairness the words, “in terms of their population” can only be found in the Meghalaya Reservation Policy, which for all intents and purposes, and unfortunately for the agitating groups, is not a document which is superior or above the Constitution of this country.

Now coming back to our State, the Reservation Policy has always been a bone of contention between the two major tribes of Meghalaya. This is not something new, and stretches back to the inception of the state. The Garo’s have become ambivalent and almost inured to it. Ever since the Meghalaya High Court ordered the implementation of the Roster System, certain groups in Khasi hills, have made demands from a perceived Garo-led government, that it should be implemented prospectively and not retrospectively, the contention being that, if it is implemented retrospectively then the Khasi tribe will no-longer get employment for another 50 years, which ironically is an admission, that a certain advantaged community has been getting, more than its fair share of the employment cake; whether the appointments, stretched over 50 years, have been done in a legal manner on merit, or through illegal means (manipulations, unadvertised posts, backdoor or illegal appointments) is an altogether separate matter. However, what has stirred the hornets’ nest are the demands of a nascent political party based in the Khasi hills, which has decided that it is not satisfied and that only the review of the Reservation Policy, based on population and with 80 percent reservation of the three tribes together, is the only acceptable solution.

It may be mentioned that, the Hon’ble High Court of Meghalaya, ordered the implementation of the Roster System, in order to ensure that the State Reservation Policy is being adhered to in letter and spirit. In 2022, the Meghalaya High Court in a case titled,  Greneth M. Sangma vs The State of Meghalaya & ors, and after having examined the employment data in our state, ordered the implementation of the Roster System, excerpts from this order states “It is hereby noted further that those who have obtained qualified marks or bench marks as fixed for their respective categories only they can be appointed in that particular category itself. To be clearer one category cannot encroach into the other category even if they get the highest marks”. Further, it states that “the present appointment followed by the State Government to bring a candidate from one category to the other category is totally illegal, unconstitutional and in violation of Article 14 and 16 of the Constitution of India.” This particular order is in reference to the unlawful practice in our state, of appointing a particular more privileged community against the quota of another disadvantaged community, as well as at the expense of other backward classes and even the general category citizens, thus depriving all these other categories of their rightful share, finally culminating in the order for the implementation of the Roster System in the state.

The Meghalaya High Court order further states, “the observations and directions given above are to be followed strictly, and that when, while revisiting the Reservation Policy, the Government is to keep in mind that the Constitution of India does not desire more than 50% reservation and a Nationalistic view should be taken so that no class of citizen is deprived of his/her rights guaranteed by the Constitution of India”. Repeating the same the High Court order, emphasised the importance of implementing the Reservation Policy, proportionately and equally, even for the general category, so that the, “dream and intention of our Constitution to bring all the citizens in one level is bound to collapse, because forward classes (general category) will come down and backward classes will go up, which is not the intention of the makers of the Constitution of India”.

So, keeping in mind, the constitutional yardstick of representation in the services, as the correct measure for backwardness, the Government of Meghalaya should take this golden opportunity, exactly as in the case of Nagaland, to carrying out a census on the social, educational and economic backwardness of each tribe, that is, the Khasis, Garos, Jaintias and other backward classes, as well as representation of the general category citizens in the services. Based on this quantifiable data, of backwardness and inadequacy of representation in the services, a decision should be made on the review of the current Reservation Policy. This will effectively kill any future opportunistic attempts by any group, to politicise the Reservation Policy, and bring lasting harmony in the relationship of all the communities living here.

Further, as is the established practice in all Indian states that follow a Reservation Policy, a clear categorization/division/percentage, of said reservations with a Roster System, must be maintained or made in order to prevent one community poaching on the rights of the other, as enshrined in the principles of Article 14 and 16 of the Constitution. This goes for everyone, irrespective of the tribe or community, they belong to. Once reliable data is available, the State government shall be free (empowered) to categorise or classify backward classes (ST/SC) as backward and more backward, under Article 16(4) of the Constitution. It must be on the basis of quantifiable facts and objectivity alone, that the Reservation Policy be reviewed, and not on the basis of misleading local perceptions, tribal loyalties and politically fuelled propaganda.

The Supreme court judgement that, “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 the people. It might happen that in far-flung and remote areas, 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, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.” These observations of the top court, have been given a myriad of local twists and interpretations, to fit the political narrative in Khasi hills. The very fact, that we consider ourselves special and extraordinary is delusional, and is not a fact that has been irrefutably established in court. It is therefore, absolutely erroneous on our part to think that our rights are somehow more superior to the rights of other backward classes or the general category citizens of our state, in the eyes of the law.

Further, in the said observations of the Supreme Court, the operative words are ‘some relaxation in this strict rule,’ therefore, this relaxation may only extend to the already approved 10% for the EWS reservation above the existing 50% reservation limit, as established in the Indra Sawhney Case. While the entire matter is extremely subjective, one is absolutely certain that the entire case for relaxation, will depend entirely on irrefutable facts alone, especially on the exact ratio of the different classes employed in the state services, since 1972.

However, what one finds extremely disturbing is the false political narrative that, a review of the State’s Reservation Policy will secure the future of Khasi youths, and that it is a magical panacea and a cure all solution, to the unemployment problem in Khasi Hills. The facts are however completely the opposite. It is unfortunate, but the, ‘Era of Government Services is over’ and this factual situation and reality, is the same for all the tribes and inhabitants of Meghalaya. Available vacancies are a mere handful, while the unemployed in the entire state already number in lakhs. The perception that the Government is the perpetual factory, responsible to provide employment to all the youths is wrong and must not be further perpetuated. The solution of course lies in equitable economic development of the entire state. Entrepreneurship, Tourism, Industries, nurturing of the corporate sector in various fields, and the opening up of our economy, will go a long way to generate lasting employment, rather than cosmetic changes of the skewed Reservation Policy of Meghalaya.

Personally, I am in complete agreement with the observations of the High Court of Meghalaya, that the reservation policy must not exceed 50%, since the future of all the youths in the state, including those in the general category, are equally important. So, if there are any fair minded, conscientious citizens whether Khasi, Garo, Jaintia or from the general category, please approach the Supreme Court to permanently and formally, put an end to the repeated politicization, of the reservation policy in Meghalaya. For those wondering why the High Court of Meghalaya did not intervene if 50% is the maximum permissible limit, it is because only the Supreme Court of India can preside over matters of criteria in Reservation.