By Bhogtoram Mawroh
One of the sparks that led to the fall of the Sheikh Hasina government was her attempt to reinstate the quota system, which reserved 30% of the jobs in the civil service and public sector to the descendants of those who participated in the movement to free the country from Pakistan. Sheikh Hasina’s father, former Prime Minister Sheikh Mujibur Rahman, had originally introduced the system. It was abolished in 2018 amidst large-scale protests by students but was brought back after a High Court decision. This immediately led to large-scale protests by the students. The situation escalated after the high-handed approach of the government led to the deaths of many protestors. With her position becoming untenable, Shiekh Hasina finally resigned after the army served her an ultimatum. She is currently taking refuge in India. One hopes that Bangladesh can have free and fair elections soon. But whatever the outcome of that election, whether it be Islamists coming to power or moderate voices prevailing, it will be the choice of the Bangladeshis, and we will have to accept it, whether we like it or not.
Coming back to India, the issue of reservation may not be as potent in that it can lead to anarchy in the country, but it did play a role in the last general election. Reservation is an integral part of the Indian constitution and the legacy of B. R. Ambedkar, a Dalit, who is known as the father of the Indian Constitution. Any tinkering with it is bound to create resentment among the marginalized communities, especially the Dalit/SC and the Schedule Tribes/Adivasi/Indigenous peoples, who voted overwhelmingly against the BJP. There was a perception that the BJP was going to change the Constitution if they got the majority. BJP lost more than 60 seats, bringing their individual tally (240 seats) below the majority mark (272 seats), making them dependent on allies like JD (U) and TDP.
The BJP denied the allegation that they wanted to change the Constitution, reaffirming their support to continue with reservations. However, they oppose reservation based on religion, claiming that this was a conspiracy to give the share of SC and ST’s to Muslims. The original idea behind reservations was to thwart caste-based discrimination, which had given rise to social and educational backwardness among individuals belonging to the SC and ST communities. However, the BJP brought the 103 Constitutional Amendment Act, which gave a 10% reservation for Economically Weaker Sections (EWS) of society other than backward classes, scheduled castes, and scheduled tribes for admission to central government and private educational institutions and recruitment in central government jobs. This introduced the narrative that it is economics, not castes, that is the source of oppression in Indian society. Yogendra Yadav (an activist and psephologist) has observed that there are some parties on whom certain allegations stick, whether those allegations are true or not. The jury on the allegation that the BJP is anti-reservation is still out. The party’s actions only intensify the suspicion.
On the other hand, the BJP’s allies, TDP and JD (U), have taken positions in opposition to the BJP’s perceived or actual stance on reservation. Chandrababu Naidu, the head of the TDP, had promised to preserve the 4% reservations to Muslims under the OBC category in Andhra Pradesh. JP Nadda, the BJP president, had previously announced that religion-based reservations would not be allowed as long as Modi and the BJP are in power. On November, 9, 2023, JD (U) passed the Bihar (in admission in educational institutions) Reservation (Amendment) Act, 2023, and the Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes, And Other Backward Classes) (Amendment) Act, 2023. These amendments increased reservations for EBC, OBC, SC, and ST communities from 50 to 65% in educational institutions and government jobs. This increased the total quota for reservations in Bihar to 75% (along with the additional 10% reservation for economically weaker sections). This decision was based on the Bihar government’s caste survey report, which showed that the majority of Bihar’s marginalized population had low representation in educational and government institutions. The increase in reservations was justified by referencing the concept of ‘inadequacy of representation’.
The amendments made by the Bihar government were challenged in the Patna High Court. The petitioners against it argued that this breached the 50% limit on reservations as laid down in Indra Sawhney and violated the basic structure of the Constitution. On June, 20, 2024, the High Court declared the amendments unconstitutional. In its judgment, the High Court mentioned that according to the government’s own caste survey report, the backward classes, including SC and ST communities, are already occupying a total of 68.52% of the total posts in government employment. Adequate representation already exists, and there was no valid ground to breach the 50% limit, the Court noted. Exceeding the limit is permissible only under exceptional circumstances, which do not include population. The Supreme Court has refused to stay the High Court’s order but has agreed to hear the Bihar government’s plea in September. As things stand, it does not appear that the judgment will be overturned. There might be a twist, though, now that the judgment on sub-classification within reserved categories has been delivered.
On August 1, 2024, a seven-judge Constitution Bench of the Supreme Court, led by Chief Justice D.Y. Chandrachud, upheld the validity of sub-classification within Scheduled Caste categories, overruling the five-judge bench decision in E.V. Chinaiah v. State of Andhra Pradesh (2004). This judgment concerned a circular issued by the Government of Punjab, which stated that, out of the seats reserved for SCs, 50% would be allocated to Balmikis and Mazhabi Sikhs on the grounds that they were more backward than the other SCs in the state. The remaining 50% would be available to the other 37 SC communities. This is despite the fact that the Balmikis and Mazhabi Sikhs make up only 12.61% of the total SC population of the state.In the context of Meghalaya, this would translate to the following. According to the 2022 Statistical Handbook of Meghalaya, the state had a total of 46,603 government employees belonging to the ST community. Khasi employees made up 62%, Garo employees 34%, and the remaining STs—such as Karbi, Rabha, Hajong, and Biate—accounted for only 2% of those employees. The logic followed by Punjab, if applied, would mean that out of the 85% reserved seats, at least 20% should be reserved for the other STs in the state, on the grounds that they are not adequately represented in state services. The community that will lose the most seats in this scenario will likely be the Khasi, who are currently disproportionately represented: they hold 56% of the total jobs (combining both ST and non-ST employees), despite constituting only 46% of the total population. Khasi will not lose reservation but other communities that are currently less represented will get more seats. With the sub-classification carried out by the Government of Punjab receiving constitutional validity, the scenario described above is very much a possibility if the same logic is applied to Meghalaya. The judgment contains other interesting observations that also merit consideration.
While delivering the judgment, Chief Justice D.Y. Chandrachud made the observation that the rationale behind “adequate representation” was not just “numerical representation,” but it primarily meant “qualitative representation.” He gave the following example to clarify his point: Suppose two classes were afforded a reservation, but the lower posts were filled by one class and the higher posts were filled by another. In such a situation, merely looking at a numerical representation will not paint an accurate picture. In reality, the higher posts are occupied by one class and the lower posts by another. The quality of the representation would come into question. This example becomes very critical in light of the findings that of the total number of currently serving MCS officers promoted to IAS, 75% are Khasi and 15% are Garo. Could this be an example of the principle of ‘adequate representation,’ or ‘qualitative representation,’ being violated? We will find out very soon.
The Chief Justice also wrote that in order for sub-classification to take place, the state will need to prove that there were varying degrees of backwardness and “inadequate representation” within the larger group. According to him, “the state must prove that the group/caste carved out from the larger group of Scheduled Castes (ST in the case of Meghalaya) is more disadvantaged and inadequately represented.” Meghalaya is quite fortunate in that there is enough data available that can help reveal the degree of backwardness among the different ST communities in the state. The 2022 Statistical Handbook of Meghalaya is one such document and can be combined with district-level data from the ‘North Eastern Region: District SDG Index, Report, and Dashboard Baseline Report 2021-2022,’ the National Multidimensional Poverty Index: A Progress Review 2023, NFHS-5, and others. Whether the state chooses to use the findings from these reports to ensure ‘adequate representation’ for the different communities is a separate matter.
The judgment also noted two different models of reservation: the exclusive model and the preferential model. On paper, the current State Reservation Policy of Meghalaya claims to follow the first model (where seats reserved for a certain community, such as the Garo, if not filled, will be carried over to be filled by them in the subsequent year). In practice, however, the second model is observed: the Khasi are not only given seats allocated for the Garo but also take seats meant for other ST communities and the general population. The Chief Justice noted that either of the two models can be followed, but the choice is subject to judicial review.
Without delving into the entire debate on the creamy layer, which would require another article, the two judgments—namely, striking down Bihar’s attempt to reserve 65% of the seats for backward classes and upholding the constitutional validity of sub-classification within Scheduled Castes—will have significant implications when the State Reservation Policy of Meghalaya is reviewed by the court. I think it’s inevitable because any change will prompt the Garo to approach the Court, while nothing less than giving 50% reservation to the Khasi will compel the VPP to approach the Court. In a sense, it could be considered a good thing. Instead of creating communal tensions in the state, it’s better that the court decides the constitutional validity of any change in the existing policy. When that happens, we will accept the judgment and go on with our lives. That will be the best outcome for all.
(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)