By Bhogtoram Mawroh
I am sure many are already annoyed and bored with the ongoing debate on reservations. It is over a year since this issue took center stage, threatening to throw the state into turmoil. In order to alleviate tensions the Government was forced to announce the formation of an expert Committee. The Committee has already heard submissions from groups in the Khasi region. Soon, it will be the turn of groups from the Garo region to present their viewpoints. The calm resulting from the formation of the Expert Committee has allowed for reflection and re-evaluation of future actions. While there is still strong support among the Khasi for a review of the Reservation Policy, the cracks in the rationale behind this demand are becoming increasingly evident.
There is now greater acceptance that the original design of the Reservation Policy was, and still is, based on ‘adequacy of representation’ and not population per se. Some continue to confuse the two by claiming that adequacy must be based on population, which suggests that both are the same. Of course, this is merely an attempt at wordplay that may work in informal conversations but can be easily countered when presented as legal arguments. Consider the observation made by the Supreme Court in the landmark Indira Sawhney and Others vs. Government of India judgment of 1992:
“We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation … and (therefore) 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.” (Paragraph 94 A)
In the paragraph shared above, the Supreme Court made it clear that adequate representation must not be interpreted as proportionate representation. This is based on the wording of Article 16(4), which discusses the ‘adequacy of representation’ as the rationale for providing reservations, taking cognizance of the view of B.R. Ambedkar, the father of the Indian Constitution. He stated during a discussion in the Constituent Assembly that reservations “must be confined to a minority of seats”. The 1992 judgment established that “minority of seats” means that reservations cannot exceed 50% of the total seats. This interpretation has stood the test of time, as seen in the 2024 Bihar High Court judgment and the 2021 Supreme Court judgment on the Maratha reservation. Unless a constitutional amendment is made, it is highly unlikely that the judiciary will tolerate any violations of the 50% ceiling or the rationale of ‘adequate representation’. However, there is an attempt to circumvent this by arguing that the rationale of ‘adequate representation’ does not apply to the Scheduled Castes (SC) and the Scheduled Tribes (ST).
According to the 2011 Census, the Scheduled Castes (SC) and Scheduled Tribes (ST) comprise about 16.6% and 8.6%, respectively, of India’s population. Reservations for these two groups mirror this proportion: 15% and 7.5%, respectively. Therefore, some argue that reservations for Scheduled Tribes (ST) and Scheduled Castes (SC) are actually governed by the proportion of their population rather than by ‘adequacy of representation.’ Such flawed reasoning ignores the fact that reservations for SC and ST are provided under Article 16(4), which states that “the State … (can make) provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” Until 1992, the total reservation for ST and SC amounted to 22.5%, which was still within reasonable limits. However, after the publication of the Mandal Commission report, the Supreme Court recommended implementing reservations for OBCs in central government services. The Court, however, observed that if the population criterion were followed, it would increase the reservation to more than 70% (as OBCs constitute nearly 52% of the Indian population). This was deemed to be unreasonable. Therefore, the Court decided to limit the reservation to 50% by recommending 27% reservation in favour of OBCs, citing the provision of ‘adequacy of representation.’
This means that reservation of jobs under Article 16(4) is now governed by the rationale of ‘adequacy of representation’ and not by the proportion of the population. This also applies to reservations for ST, as they do not have a separate provision for jobs outside Article 16(4). The rule of ‘adequacy of representation’ can be violated only if a separate provision for ST explicitly states that the proportion of the population is the criterion. Until then, reservations for ST must follow the same rules as outlined in the Constitution and reiterated by the Supreme Court. For those who wish to use this argument in a court of law, they should do so with extreme caution.
The other fallacious argument being circulated is that there is no scientific way to ascertain the backwardness of the different ST communities residing in the state. It is claimed that data on backwardness, for example, SDG rankings, are available only at the district level, which cannot be applied to specific communities. Another claim is that when analyzed in terms of districts, some Khasi-dominated districts have performed worse than Garo-dominated districts. This has been taken to suggest that all communities are equally backward or that there is no accurate way to ascertain backwardness at the community level. Therefore, population is the only reliable criterion for determining reservations. Let’s examine these claims.
On analyzing the ranks of the different districts in terms of SDGs, East Khasi Hills has achieved the highest rank of 57, while North Garo Hills has the lowest rank of 98. Thus, it might seem that Khasi districts are more advanced than Garo districts. However, a closer look reveals that certain Khasi districts also have lower ranks. For example, South West Khasi Hills’ rank was 87, while that of West Garo Hills was 74 (a difference of more than ten points) So, should residents of South West Khasi Hills be considered more backward than those of West Garo Hills? This highly naïve attempt at obfuscation forgets the basic fact that reservation in the Constitution is granted to communities and not geographical areas. The Khasi are given reservations because they are part of the Central list of STs, not because they reside only in Khasi-dominated areas of Meghalaya. If a Khasi is born and brought up in Williamnagar (the district headquarters of East Garo Hills), she is still eligible to apply for government jobs in the state. Only when a community is removed from the Central list will it become ineligible for reservation benefits. Some communities may not be considered Scheduled Tribes (ST) in certain states, but wherever they are recognized, they remain eligible for reservation. I emphasize again: reservation is granted to communities and not geographical areas. Let’s not confuse ourselves or others about this issue.
Therefore, if one wants to find the backwardness of different communities in the state, the individual ranks of the districts dominated by a specific community must be combined to produce an overall rank. This can then be compared with that of the other community, arrived at in a similar manner. Such an exercise shows that the average rank of Khasi-dominated districts was 75, which is ten places higher than the average rank of Garo-dominated districts, which was 85. Still, there’s another attempt to create confusion by arguing that different communities reside in any particular district, making it impossible to attribute backwardness—even if it is found at the district level—to a specific community. Such claims reflect ignorance of the demographic profiles of the state and its districts.
According to the 2011 Census, the ST population constituted 86% of the state’s population, with district-level figures ranging from a minimum of 73% in West Garo Hills to a maximum of 97% in West Khasi Hills. Even in East Khasi Hills, which has a significant non-ST population, 80% of the district’s population is ST. There are minor ST groups, but their numbers are too small to significantly affect the overall rankings. The total other ST population in Meghalaya is just over 5% and tribes like Karbi and Biate make up around 5% or less of the total population in Ri Bhoi and undivided Jaintia Hills, respectively. These numbers are too small to affect the overall ranking, which accurately reflects the situation of the dominant ST communities, Khasi and Garo. The rankings achieved by the districts can therefore be attributed to the dominant community residing in those districts.
There is one last piece of data that does not take a roundabout way to prove the backwardness of a specific community but points at it with unerring accuracy: data on government jobs. The Census of Meghalaya Government Employees provides a community-wise breakdown of jobs in the state government, viz., Khasi, Garo, other ST, SC, OBC, and others. In 2022, the maximum number of jobs (60.86%) was held by the Khasi, followed by the Garo (30.61%), with the figures for other ST, SC, OBC, and the general category being 2.41%, 0.54%, 1.11%, and 4.47%, respectively. The term ‘adequacy of representation’ in state services clearly hints at this kind of situation. One can easily discern the groups that are backward from this statistic alone, with no other data needed.
But even if data on backwardness, as wrongly claimed, is not currently available or cannot be attributed to specific communities, population cannot be used as a criterion for reservation. This observation by the Bihar High Court is highly relevant in this regard: the Court pointed out that when proportionate representation was intended, it was spelled out in the Constitution, and there can be no importation of the term where it is not specified. Where there is no such mention, the principle is not applicable, and applying it would create excessive reservation, thus frustrating the cause of equality.
This reservation saga is going to be over very soon. The Expert Committee will make its recommendations, and the Government will have to take hard decisions. It is then that we will truly know who is more convinced of their stance and willing to go far to achieve their demands. If the government says ‘status quo,’ will those demanding a change decide to go to court to correct what they deem injustice? Or will they blame the government instead and use the issue for vote bank politics in the near future? Till then, I would request everyone to keep calm and not pay heed to any more attempts to create confusion. Just be patient: the truth will soon be revealed.
(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)