By Kitdor H. Blah
It would not be wrong to say that the subject of Reservation has been ‘adequately represented’ in the public discourse in the state in recent times. It is also true that this is not a new discourse. Thirty years ago, even twenty years ago, this has been the subject of articles and public demand of organisations. And perhaps, it would also not be untrue to say that the present participants are at the tail end of the discourse. I use the words tail end, because the Government has taken steps towards implementing the demand for reviewing the State Reservation Policy. Hence I congratulate the nascent political party that has made use of legitimate democratic means to put pressure on the Government to give the issue a serious look. I also congratulate the Government for respecting the will of the people and accepting the proposal put forth by that party. In anticipation of the recommendations of the yet to be formed Expert Committee, the present discourse is of utmost importance because the long pending demand is about to come to fruition, but the nature of that fruit is of critical importance. Will it reflect the long public discourse that has brought us here, or will it take on an unfamiliar form?
The consistent demand from organisations has been to review the policy in order that the quantum of quota is determined according to the proportion of the population of the Scheduled Tribes in the State. Their demand is based on the principle that the existing quota has caused a disadvantage to the Khasis, in public recruitment and academic courses, owing to their larger population. This has been the historical demand and aspiration from many sections of the Khasi community, and the recent discourse has hinged on this aspect of proportional reservation with various case laws and judgments being brought to the fore.
But at this present juncture, between the decades long historical discourse and the anticipated Expert Committee, what is critical is the amplification of novel voices that would look to reshape the dialogue at this juncture and steer the discourse away from the historical demands that have actually brought us to this point. These novel voices can be grouped together as one, because they have the same underlying principle. This writer intends to show that their principle is wrong, and not according to the principle of the Constitutional provision for Reservation, which is Article 16(4). This is necessary in order to empower the public to give a principled measure of the anticipated recommendations of the Expert Committee.
These novel voices have taken the form of new and unfamiliar demands that look to reshape the very principles of the demand to review the Reservation Policy and steer it away from the historical aspirations that have led us to this juncture. First, questions have emerged from some writers as to who deserves Reservation more. The point of their question is that if we measure the economic and educational status of the Khasis and the Garos, we would find that the Garo community is “more backward” and hence, if the policy is to be reviewed at all, it must be to give more Reservation to the Garos. Second, since there are districts in Jaintia Hills that have lower literacy rate than some districts in Garo Hills, there has risen a demand to determine the Reservation quota according to the relative educational and economic status of districts. Third, there has arisen a demand from an organisation called Anti- Corruption League, to give 4% reservation for Muslims in the state. Fourth, there is a demand to exclude a section of the tribal communities in the state from Reservation, owing to their high economic status, by defining them as “creamy layer.” Fifth, is the demand to give special Reservation to a section of the tribal communities in the state, owing to their low economic status, by defining them as “economically weaker section.” Sixth, is the demand from some tribal communities in the state, namely, the Hajong, Rabha, Koch, Bodo, Kachari, Minn Tai, under the new organisation ‘Meghalaya Indigenous Minority Tribes,’ to give 15% Reservation for these communities. All these novel voices are one voice, and all these unfamiliar demands have one and the same underlying principle, and that is to question the “backwardness” of that tribal community or those tribal districts that have a relatively higher economic and educational status, and to therefore question their privilege to enjoy equal Reservation.
This writer intends to establish the indubitable social backwardness of the Scheduled Tribes, and the indubitable constitutional privilege of every Scheduled Tribe to enjoy equal Reservation as other Scheduled Tribes, which of course can only be achieved by determining the Reservation quota in terms of their population, which is the principle of the State Reservation Policy.
The Constitutional provision for Reservation, Article 16(4) is rooted in social backwardness. The historical and social backwardness of castes in India that beckoned Reservation is due to the social discrimination that is present in the Caste System, which has resulted in generational economic and educational backwardness. What the Scheduled Castes historically could not afford, due to the discriminatory Caste System, was social mobility, i.e. the opportunity to improve their social status. Thus, in the Indian context, and in the context of Reservation, economic and educational backwardness cannot be divorced from social backwardness. In the case of the Scheduled Tribes, there are no criteria that define a Scheduled Tribe, and the Government has not laid down any such criteria when it listed the Scheduled Tribes. But there has historically been certain inherent features that characterised Scheduled Tribes, such as the hill areas and/or forests that they inhabited that was isolated from the mainland, the social life that they lived that was secluded from other communities at large, the distinct customs that they practiced that made them peculiar and excluded from the main body of people. In other words, the social backwardness of the Scheduled Tribes was rooted in their geographical and social isolation. While these are not the criteria that define Scheduled Tribes, they are what has historically characterised them.
The history of the Scheduled Tribes in North East India is that the areas they inhabited were defined as “backward tracts” by the British in the Government of India Act, 1919. They were later redefined as “excluded areas” and “partially excluded areas” in the Government of India Act, 1935 for the purpose of administration. The Khasi Hills, Jaintia Hills, Garo Hills and Mikir Hills fall under the “partially excluded areas.” In both Acts, special provisions were made in the administration of the “backward tracts” and the “excluded and partially excluded areas” such that (i) the provisions of the 1919 Act would not apply to the “backward tracts” without exceptions and modifications, and that any Act of the Indian Legislature shall not apply to these areas, or shall apply subject to exceptions and modifications, as notified by the Governor-General (ii) no Act of the Federal Legislature or of the Provincial Legislature under the 1935 Act shall apply to the “excluded and partially excluded areas” unless the Governor so directs, subject to exceptions and modifications as notified by him and (iii) the Governor may make regulations for the peace and good government of the “excluded and partially excluded areas” and such regulations may repeal or amend any Act of the Federal and Provincial Legislatures and any existing Indian Law. Moreover, the Khasi and Jaintia Hills existed beyond the boundaries of British India, except for a few Sirdarships, and the British never imposed taxation on these hills. Thus, although no criteria has ever been laid down by the British or by the Government of India to define Scheduled Tribes, yet the historical characteristics, geographical isolation and peculiar social life of the Scheduled Tribes made their social backwardness self-evident, and without question.
The Supreme Court in the judgment dated 16.11.1992 in the case “Indra Sawhney vs Union of India” made this ruling in para 88A, point (e): “It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression “backward class of citizens.” The accent in Article 16(4) appears to be on social backwardness.”
Thus, the word “backwardness” in Article 16(4) cannot be broken down to the singular “social backwardness” or the singular “educational backwardness” in Article 15(4), as it is much wider in meaning. It seems that Article 15(4) has placed the backwardness of the Scheduled Tribes apart from the social backwardness and educational backwardness of other classes when it says, “The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.” Hence the backwardness of any Scheduled Tribe is indubitable, i.e. it is beyond question. It is not subject to any question based on any test or parameters of social backwardness or educational backwardness, and inter alia of any economic backwardness. Thus, the above mentioned novel voices and unfamiliar demands, that seek to put forth the question, “Who deserves Reservation more?” or to subject the tribal communities in the state to such tests or parameters of backwardness, or to divide the tribal communities in the state according to social, educational and economic status, or to divide the state itself according to the social, educational and economic status of different districts, have a single-point agenda and that is to question the backwardness of any Scheduled Tribe. Their principle is defeated by the principle of indubitable backwardness of any Scheduled Tribe in Article 16(4) and the above mentioned Supreme Court judgment dated 16.11.1992.
Thus, in anticipation of the recommendations of the Expert Committee, the reader must understand the unprincipled nature of these novel voices and unfamiliar demands. In contrast, the continued historical aspiration for equal Reservation for all the tribal communities in the state can only be achieved by determining the proportional reservation based on population, which is the principle of the State Reservation Policy in the Resolution dated 12.01.1972. Moreover, the reasons for the low educational and economic status in some districts is not due to social discrimination or exclusion. There is also great social mobility. A mechanic’s son can become a legislator, and a farmer’s son can become a professor. Hence what these districts need is good governance and clean politics.