Recently, there was a news report that the Meghalaya Government has been dilly-dallying on the formation of the Expert Committee. The Chairperson of the Committee, Ampareen Lyngdoh, blamed the delay on the lack of suggestions from the political parties. VPP (Voice of Peoples’ Party), the party that led the agitation for review of the current reservation policy, has termed the delay a “circus” and demanded that the government should get down to business. Whatever the reasons for the delay, a final resolution is a must. Hence it is better that the Expert Committee is constituted. And now since the Committee has been formed the question that will arise once it sits and deliberates on the issue is what might be its recommendations. Will the old policy remain or will there be a revamp? If it’s the latter, who will benefit and who will lose out in the process? And finally, what happens to the future of the political parties, especially those in the MDA-led government and the VPP, which has staked its political credibility on the issue? These are very important questions to deliberate on, as they have serious implications for not just Meghalaya but the whole country as well.
The first possible recommendation of the Expert Committee could be, as demanded by VPP, to reformulate the reservation policy proportionately based on the population. Such a recommendation will compel the Garos, who, despite being assured 40% reservation, are in actuality getting around 30% or less, to go to court. There is already the 1992 Indira Sawhney and etc. vs. Govt. of India judgment, which states that, “Adequate representation (mentioned in the Constitution) cannot be read as proportionate representation… (therefore) the power conferred by Clause (4) of Article 16 (which governs reservation given to SC, ST, and OBC) 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, it is very clear that reservations cannot be given based on population, and hence the limit of 50% has been kept.
During the debate organised by T7 (the local news channel) on June 9, 2023, on the reservation policy, I took part in it and was told by those representing VPP’s position that the legal issue around the rationale of reservation has not been settled, with the court itself not very sure whether to apply reservation based on adequacy or proportionality. However, as far as I am aware, the Indira Sawhney judgement has not been reviewed, with the most recent case being the 2021 Maratha Reservation Judgement, which upheld the 1992 judgement striking down the Maratha reservation law for breaching the 50% ceiling. In the debate, the 1976 State of Kerala v. N.M. Thomas judgement was cited as an example of proportionate reservation, which was actually discussed and rejected by the Supreme Court in 1992. Those interested in finding out can refer to paragraphs 93 and 94A of the 1992 judgement. So, I am not aware of any case where a reservation has been given based on population after 1992. Hopefully, when the case goes to court, those instances can be cited to the learned bench to defend reservations based on population.
I am, however, not very confident since a judgement that supports reservation based on population in Meghalaya will have ramifications for the entire country. The Indira Sawhney judgement was made in the context of the Mandal Commission report, which identified OBCs (Other Backward Classes) as being eligible for reservation and found that they make up 52% of the Indian population. If OBCs got reservations based on population, the total reservation would be around 75%, leaving only 25% for open competition. That would have gone against the views of BR Ambedkar, who during the drafting of the Constitution had clearly stated that reservation “must be confined to a minority of seats” Based on this, the court therefore ruled that reservations have to be based on the criteria of adequacy, not proportionality. So, any deviation would mean a violation of the original design of the framers of the Constitution. Since reservation under Article 16 (4) is governed by the 1992 judgement, the law cannot be broken for the claims made by the ST and ignoring the SC and the OBC.
However, there is a way out of this. The 1992 judgement also stated that promotion cannot come under reservation and that economic criteria cannot be the sole criteria for giving reservation. Subsequently, the Parliament passed the 77th and 103rd amendments, which allowed reservation in promotion and 10% reservation for the EWS category based solely on economic criteria. So, for the VPP, which doesn’t have a single MP and may not have one even after the 2024 election, the only way they can get a reservation based on population is if they have a secret agreement either with the BJP or the Congress to pass an amendment in Parliament to that effect. Unless that happens, it is impossible to see how reservations can be given based on population. But what happens if the Expert Committee, in cognizance of the difficulties, recommends that the present policy remain as it is?
In such a scenario, the VPP, which has staked its political capital and reputation on the issue, will have to make some difficult choices. The first option they have is to not contest the recommendation legally. The party will express displeasure but not push for a legal challenge. However, this will raise the question of why the entire issue was raised in the first place. Did the party not know of the legal difficulties before it riled people up against the current policy? How can the entire state be put under anxiety without the party spearheading the agitation deliberating the issue thoroughly? Isn’t that highly irresponsible? The other suspicion that would arise is that VPP knew that the issue did not have legal merit but still wanted to put pressure on the government so that when the new policy fails the legal challenge, they can blame the government, claiming that they are the ones who failed the people. This way, they will most likely garner electoral gains. Now, other parties have already made the allegation that the whole issue has been trumped up for electoral gains, with the VPP vehemently denying it. So, if it does not legally challenge the recommendation, those allegations will be proven to be true.
A way out for the VPP will be to contest the recommendation legally and prove that the whole agitation was not driven for political gains. Two outcomes are possible in this case. The first outcome is that the challenge fails, the present policy is held to be legally tenable (based on extraordinary situations), and the status quo is maintained. The fact that the issue has been discussed a lot in the public forum will raise the question again as to whether VPP raised the issue either not being aware of the legal difficulties (being irresponsible) or for electoral gains and in the process creating a schism among the indigenous communities of the State (playing the politics of divide and rule). The other, more worrying outcome could be that the reservation is reduced to 50% and the Khasi-Jaintia community loses their 40% guaranteed reservation. What will remain of the political credibility of the VPP, which had created so much agitation in the State but ended up losing the benefits that both the Khasi-Jaintia and the Garo are currently enjoying? What will those Khasi-Jaintia youths do who might have got the job under the current 40% reservation policy but will not lose out under the court-mandated new 50% reservation policy? What happens to their families, who knew they could have had a better life if the old policy had remained?
The last outcome, in case VPP decides to challenge the recommendation of the status quo, is that they win the case and the Khasi-Jaintia gets an extra 6%–7% based on their population. This would immensely raise the profile of the party, and they will have a very good chance of winning, if not all, at least 30–31 seats in the next Assembly elections. On their own, they can form the government and have free rein to do whatever they want. So for the VPP, the whole reservation saga carries great risk, but it also carries great reward.
Since the Expert Committee has been constituted, the result of the discussion should be out before the elections next year, maybe a month or so before. This will give the public a good opportunity to find out whether this whole agitation around reservations was a genuine attempt at correcting a historical wrong or an attempt to divide the community for political gains. We will find out sooner than later.
(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)
