Tuesday, July 16, 2024

Reservation Saga: Day of reckoning is near


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By Bhogtoram Mawroh

Nothing in recent memory has generated so much political heat in Meghalaya as has the demand for a review of the 50-year-old state reservation policy. Under pressure from the hunger strike organized by the VPP, the MDA Government was compelled to constitute an expert committee to examine the issue. The last date for the general public to submit their suggestions to the committee was June 15, 2024. It has now been extended by another month. While the Khasi are demanding that the old policy be amended to give more seats to their community, the Garo are adamant that the status quo should be maintained.
A group known as the All India Garo Union (AIGU) has warned of the possibility of riots if there is any modification to the existing 40:40 formula. I would request that the group not further inflame the situation, which is already very fragile, by making such irresponsible statements. The frustration of the Garo is understandable considering the fact that, as per the 2019 data of the Government of Meghalaya, they were able to avail only 26% of the jobs, much below the 40% that was promised to them under the State Reservation Policy. In comparison, the Khasi cornered 60% of the jobs—20% more than what was allocated to them. This is more than the seats available in the open category, i.e., 15%, which means that the jobs meant for the Garo and the other STs were given to members of the Khasi community. Now that the Garo community feels that they are finally in a position to fill up their quota, the demand by VPP to change the formula must be very infuriating. The solution, though, is a constitutional one, and violence or the threat of violence can never be condoned.
One is well aware of VPP’s stance, which is about giving reservations based on the population sizes of the different communities. That would mean that reservations for the Khasi and the Garo would come down from 80% to 77%, with the share of the Khasi increasing by 6% while that of the Garo decreasing by 9%. One can understand why the Garo would be against this. There is another proposal, though, that appears to take into account the concerns of both the Khasi and the Garo. The Hynniewtrep Youth Council (HYC) has suggested that the expert committee should rework the formula to 50:40, 50% for the Khasi and 40% for the Garo. In this way, the concerns of both the Khasi and Garo can be met without the latter losing their existing share. However, the other ST/SC groups and the general population are going to lose their existing shares, 5% and 15%, respectively. In fact, these groups have already made their own demands. The non-Khasi-Garo STs want their share to be increased to 15%, while the Rajabala MLA, Dr. Mizanur Rahman Kazi, has asked for reservations to be limited to only 50% of the seats as mandated by the Supreme Court of India.
The 50% limit for reservations was introduced by the 1992 Indira Sawhney and etc. vs. Govt. of India judgment. Under paragraph 94A of the judgment, the nine-judge constitution bench came to the conclusion that “reservations contemplated in Clause 4 of Article 16 should not exceed 50%.” Meghalaya’s 80% reservation is in breach of this judgment. Some people, though, are of the opinion that the present arrangement can be defended on grounds of “exceptional situations” under which the 50% rule will not apply. They argue that Meghalaya falls under “exceptional situations.” That assertion is yet to be tested. But even if the breach of the 50% rule is upheld, people seem to ignore the rationale behind the 50% rule.
The nine-judge constitution bench was of the opinion that Article 16(4), which deals with reservation, speaks of adequate representation and not proportionate representation (i.e., based on population size). Therefore, according to them, “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 even if you exceed the 50% limit, the rationale cannot be population size. In states outside the North East, wherever the 50% cap was breached, it was due to the addition of the 10% meant for EWS, which was brought into the Constitution as part of the 124th Constitution Amendment Bill. So, population size can only be made the criteria for reservation if an amendment is brought into the Constitution with the word “adequate” being replaced by “proportionate.” This must be what Congress leader Rahul Gandhi intended to do when he announced that the party would remove the 50% cap if voted to power.
Therefore, it’s very difficult to understand how VPPs’ demand for a reworking of the formula to reflect population sizes is legally tenable unless a constitutional amendment is made. It is important to note that the VPP is not even part of the INDIA bloc, while Saleng Sangma is the Congress MP from the Tura seat. He will definitely apprise Rahul Gandhi of the ramifications of any change that might harm his own constituents. So, even if a constitutional amendment is brought about, it may not satisfy VPP’s expectations. The amendment could say that the overall reservation will be based on population size, but the reservation among the backward communities will be based on criteria other than population, e.g., comparative backwardness.
A similar concern was raised by the HYC, which has asked the Expert Committee to delay their recommendations until the Supreme Court decides in the case of State of Punjab vs. Davinder Singh. This particular case concerns the Punjab Government’s circular, which provided that out of the seats reserved for SCs, 50% would be offered to Balmikis and Mazhabi Sikhs on the ground that they were more backward than the other SCs in the state. This is being challenged at the moment. Since reservation in Meghalaya is based on a similar sub-classification, viz., Khasi, Garo, and other STs, the outcome of the case will be relevant for the state.
The issue of sub-categorization within backward classes was discussed in the 1992 Indira Sawhney judgment as well. The present Court has also taken cognizance of the observations made in the 1992 judgment, which held that categorization among backward classes is advisable so as to prevent the comparatively more advanced group (Goldsmiths in the example given in the 1992 judgment) from taking away the reserved posts meant for the less advanced group (Vaddes, traditional stone cutters in Andhra Pradesh). To prevent it, the judgment suggested “equitable apportionment of the vacancies reserved (for backward classes) among them.” This is exactly what the Meghalaya State Reservation Policy did, at least in the case of the Khasi and Garo.
HYC argues that if the Supreme Court holds the sub-classification of STs and SCs as constitutionally and legally valid, then the reservation should be 50% for Khasi, 40% for Garo, and 3% for the other STs. The problem with this demand is that if the sub-classification is held to be valid, it will actually mean giving more seats to groups that are comparatively more backward, like the Government of Punjab did (give 50% of the reserved seats to Balmikis and Mazhabi Sikhs with the remaining 50% for the other 37 SC communities). In such a scenario, this would mean more seats for the Garo and other STs compared to the Khasi since the ‘North Eastern Region: District SDG Index, Report, and Dashboard Baseline Report 2021-2022’ has clearly revealed that the Khasi districts are comparatively better off than the Garo districts.
The other argument made by HYC is that if the sub-classification of STs and SCs is declared constitutionally invalid, there should be a combined 93% reservation for all STs. This will be to the detriment of the Garo and other STs. The open category seats will also come down from 15% to 5%, which will also hurt the general category. The HYC’s 50:40 formula is attractive, as long as the other STs and the general population also accept it. If they don’t, the issue will definitely go to court. If the issue goes to court, with the 50% cap still valid, there is a chance that the present reservation could be brought down to 50% unless the “exceptional situations” argument is accepted to be valid in the case of Meghalaya.
When the VPP raised the demand for a review of the state reservation policy, they must have consulted legal and constitutional experts on the matter. Otherwise, they would not have created such a ruckus and brought the whole state to a state of confusion and anxiety. Personally, I am still not convinced that their demand can be met unless there is a constitutional amendment. But that’s my personal opinion, and there will be those who argue against my views. There are, however, two requests that I would like to make that I think we will all agree on.
Firstly, the expert committee should no longer delay the consultation process and submit its recommendations. Secondly, those who are going to be unhappy with the final decision of the government should go to court instead of creating problems or threatening violence. In case the government decides to maintain the status quo, the VPP should lead the legal challenge with the help of their legal and constitutional experts. Most probably, the court will deliver its final decision before the next assembly election. If VPP were to win the case, that would be a vindication of their stand, and they would stand to profit immensely. They may even form the next government if they can stitch an alliance with the other parties. But if they lose, and worse, if the 40% guaranteed reservation for Khasi is taken away by the Court, it will signal not only the end of the VPP but it will also destroy the intellectual credibility and the political careers of all those who are associated with it. That stain of having destroyed the lives of thousands of Khasi youth will not be easily removed.
If the stand taken by the VPP is vindicated and they win in court, they will become the most powerful political force in Meghalaya. If not, they will be remembered as a black spot in the history of the state. VPP has taken a big gamble, and that has helped them during this MP election. But will it bring the same dividends in the future? Time will tell.
(The views expressed in the article are those of the author and do not reflect in any way his affiliation to any organisation or institution)


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