Friday, December 8, 2023



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By Bhogtoram Mawroh

The formation of the Expert Committee may have led to a break in the agitations, but the issue of the review of the Reservation Policy is far from being over. To calm the tensions, the government has instituted an expert committee to review the State Reservation Policy by obtaining views from all stakeholders, including political parties, NGOs, and civil society organisations (CSOs). Another mandate also seems to initiate the evaluation of the issue from a legal perspective and gather information on the socio-economic and demographic characteristics of the state’s population. The latter would be important since reservation is meant to raise the backward classes while not perpetuating the dominance of the advanced classes over the former. Upon the conclusion of their mandate, the Committee will come out with its conclusions, but whether they are going to be accepted by the Government or the agitators is not yet clear. Also, the reservation issue is too important to be left to politicians, who have their own agenda, which might prove disastrous for the common people in the long run. It is here that the legal issue becomes very important, and the 1992 Indra Sawhney & Others v. Union of India has to be understood since any change to the policy will have to challenge this landmark judgment.

The demand for the review of the reservation policy is based on the argument that since the Khasi-Jaintia have a larger population, they should also have more of the share, i.e., 46%–47%, with the Garo being consigned to 31% as against the 40:40 rule being followed currently. The problem is that neither Article 16(4) nor the 1992 Indra Sawhney & Others v. Union of India judgment agrees with such a view. It is not to say that there have been no arguments for that. In the 1975 NM Thomas v. State of Kerala judgment, Justice Fazal Ali observed that “Suppose, for instance a State has a large number of backward class of citizens 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 of reservation is bad and violates the permissible limits of Clause (4) of Article 16? The answer must necessarily be in the negative”, i.e., reservation can be based on the size of population, concurring with the demand being made now. This observation was also recorded in the Indra Sawhney judgment in paragraph 93. But the subsequent paragraph makes it very clear that the argument was not the correct interpretation of the Constitution.

In paragraph 94A, the learned judges of the Indra Sawhney & Others v. Union of India case explained that “We (the judges) must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period”. Let us simplify this: Reservations have to be given based on ensuring the adequacy of representation. However, adequacy of representation does not mean proportionate representation, i.e., based on population size. So, therefore, reservations cannot be given on the basis of proportionate representation but only on the basis of adequacy of representation. But what is this adequacy of representation, and how did the Court arrive at the figure they considered appropriate for encapsulating adequate representation?

The third sentence of the same paragraph, i.e., 94A, reads, “It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter”. So, there are a few things that can be taken from this passage. Firstly, reservations are meant to be given on the issue of backwardness, not population size. Secondly, the Court has decided that 50% satisfies the adequate representation principle. In the case of Meghalaya, which has more than 80% ST (Scheduled Tribe) population, the 50% rule does not take away their right to run their own administration. Since 50% is reserved only for ST, the balance between ST and non-ST is maintained. Also, it can be reasonably expected that some seats under the open competition category will go to ST, which will result in the majority of ST in government services, thus ensuring that their representation is adequate. So, the Court might observe that the 50% rule should also be applicable to Meghalaya since it will not dilute the demographic dominance of the ST population in the state. There are those who will, however, argue that the 50% rule can be overlooked under extraordinary conditions. Can that not be the basis for giving reservations based on proportionate representation as well?

Clause (4) of Article 16 states that “the State can enact legislation for the reservation of posts in the government sector or jobs in favour of the backward classes of citizens, which the State considers to have not been adequately represented in the services of the State”. Since the Indra Sawhney judgment has been very clear that reservations cannot be given on the basis of proportionate representation, i.e., based on population size, exemption from the 50% rule cannot be based on proportional representation. In fact, the conditions listed under the Indra Sawhney judgment reaffirm that again: 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 the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical 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 (from sub-paragraph number four of paragraph 94A).

There are three main criteria mentioned here: far-flung and remote areas; being out of the mainstream of national life; and having conditions peculiar to and characteristic of them. There is no mention of population size, which would have clashed with the principle that reservations cannot be made on the basis of proportionate representation. So, reservations even under extraordinary situations cannot be given on the basis of population. But if the case goes to court (it will definitely go if the present reservation policy is disturbed), will the state reservation policy be justified under the argument of extraordinary situations? I am highly worried that may not happen.

The extraordinary situations enumerated under the Indra Sawhney judgment will be a very tricky affair as population size (already rejected) and even special protection status, i.e., the Sixth Schedule (given India has protection for minorities inscribed in its Constitution and believes in unity in diversity, which makes any special treatment a norm or part of the mainstream), may not be convincing enough as the Court may demand more evidence than that. Then there is the 2017 Shri Amar Singh vs. State of Meghalaya judgment, wherein in paragraph 22, the Court observed that “while revisiting the Reservation Policy, the Government should 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 or citizen is deprived of his/her rights guaranteed by the Constitution of India”. So the Court has also hinted that the present reservation policy, which breaches the 50% ceiling, should be changed and made amenable to the Indra Sawhney judgment. So, if the case goes to the Meghalaya High Court, there is every possibility that the reservation could be brought down to 50%. But even if it survives the High Court, it may not be so lucky in the Supreme Court. Therefore, caution is very important.

So what about the argument of a combined ST reservation with merit being the deciding factor? Such an argument goes against the tenets of reservation, which were reiterated by the 1992 Indra Sawhney judgment, which observed in paragraph 111 that “it cannot also be ignored that the very idea of reservation implies selection of a less meritorious person”. In fact, the argument of merit is often repeated by the anti-reservation groups that want no special provision for backward classes. So, those believing in the merit argument should compete in the open competition category and not in the reserved category. Reservations are meant for the backward classes and not the meritorious.

The last thing I want to say is that it is not logical or rational to risk the guaranteed 40% for an extra 6% or 7%. In fact, I would urge all to read the Indra Sawhney & Others v. Union of India judgment (easily available online), make their own calls, and not allow their future to be destroyed by politicians. That’s my request to all.

(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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