The Road to and from Slavery

Reservations in India are analogical to the Promised Land to the Jewish slaves in Egypt, Lincoln's proclamation to the African-Americans, the Abolition in Africa, amongst many. It was not premised merely on the efficiency of administration embodied under Article 335 often cited to justify derogation of the policy. Reservations dared to include the lowest castes and untouchables into the bureaucracy to be "adequately represented under the services of the State"; a move considered absolute madness at the time. Reservations in public employment under Article 16 (4) [1], and educational reservations under Article 15 (4) [2], came with a caveat that "the 'panchsheel' (if broken) is to be unjust to the Constitution" (Article 335) [3]. A valid prescription but conveniently overused.

Prejudice is Prejudice-Period

The precedents of Articles 15 and 16 have emphatically held what can be included therein [4]. The social flavour of discrimination for the inclusion of the reserved classes is emphasized upon since indigence is not the primary cause of discrimination but a consequence [5]. However, indigence is a means to its end and prejudice isn't perceptive. Poverty or progeny, it draws no exception. Judicial reservations to economic reservations ceased when reservations for the Economic Weaker Section (EWS) was created by the 103rd Constitutional Amendment, 2019. With states preparing to dole out the 10% reservation therein, striking the Act down now would be anarchic.

The Vicissitudes of the 50% Rule

Exceptions to the 50% rule eternalized in Indira Sawhney are prevalent in states like Tamil Nadu which placed the relevant Act in the IX schedule, a privilege forfeited in I.R. Coelho where the court bound all IX schedule antics to the basic structure doctrine [6]. The Rule has otherwise been upheld with vigour with the Maratha reservations being the latest example; despite the "exceptional circumstances" being justified by the Justice Gaikwad Commission. The vociferous demand for reservations as a right is of great concern. Firstly, reservations are not a right but an enabling provision [7]. Secondly, most reservations are on a 'first-come-first serve' basis which does not deny future classes from being included but does place the 50% rule against them as they have to satisfy the "exceptional circumstances" test; a super-backwardness so to speak. Lastly, as most states have almost 50% reservations, no government worth it's salt can reduce reservation of one class and grant it to another even if the former are adequately represented in the services of the State unless it wants to be electorally disposed of.

Thus, to applaud the passing of the 127th Constitutional Amendment Bill, 2021 is premature. Granting the states the power to make their OBC lists serves a limited purpose if any potential litigation to inclusions to the list must meet "exceptional circumstances".

The EWS has already placed a heavy constitutional burden on most states. Every state exceeding the 50 % rule now must add 10% of the EWS after which they may consider further inclusions. The "exceptional circumstances" may now require a divine burden of proof to be upheld. The EWS permits indigent communities to form a backward class devoid of any social discrimination; a sizable portion of the country. Raising suspicion on the 10% limit [8]!

The Ivory Towers of Anti-Meritocratic Claims

Do Article 335-arguments presume that in case the 50% rule is breached; "…the reservation of appointments or posts may theoretically and conceivably impair efficiency…"[9]? In that case, even .001% over the rule must be struck down as the general categories are the so-called pillars of our administration..! The misplaced argument that the reserved classes will always border on limited merit and remain there as they are ensured a seat, presumes that these classes seek progress on a platter. No welfare state can subscribe to this argument. The few who rise through deceit do not devalue the entire policy.

In the event, the administrative efficiency does suffer, withdrawing reservations would be political suicide. However, granting over 50% reservations defies any positive discrimination and renders Article 14 (Right to Equality) a nugatory-a political quandary.

Placating the Privileged

With future reservations pegged on 50% violations, backward classes cannot outrightly be denied opportunities as their discrimination "demands" representation! However, the percentages of reservations need not be so limited. The State is not prohibited from imposing only a 10% drop from the general category percentages to rebut anti-meritocracy claims in educational admissions or similar relaxations for employment and promotions in public employment. In this case, even 50% excesses need not be condemned as merit albeit limited is being strived for. Permitting the current quantum of reservations into an "efficient administration" is inviting the anti-meritocratic inevitability. Reservation is not absent meritocracy but state-assisted opportunity to the meritocracy of the general category; state-sponsored discrimination in opportunity, not opportunity itself; “Article 16 (4)… (is an) enunciation of one particular facet of the rule of substantive equality set out in Article 16 (1)” [10]. A guaranteed opportunity would be reverse or hostile discrimination [11]. The degrees of reservations must be re-evaluated or it might confirm every Article 335 pronouncement-a detested prediction of the privileged.

References:

1. Constitution of India, art. 16 (4).
2. See State of Madras v. Champakam Dorairajan (1951) AIR SC 226 [15]; See also, the Constitutional (First Amendment) Act, 1951.
3. State of Kerela v. N.M. Thomas (1976) 2 SC 310 [365] ('Thomas').
4. See Kumari K.S. Jayasree v. State of Kerala (1976) 3 SCC 730 [734]-[735] (for Article 15); Indira Sawhney v. Union of India (1992) Supp (3) SCC 217 [700-702] ('Indira Sawhney') (for Article 16) ('Indira Sawhney').
5. Ibid Indira Sawhney [537-538, 625 & 728].
6. Ibid [809]; See also I.R. Coelho v. State of Tamil Nadu (1999) 7 SCC 580 [41] ('I.R. Coelho').
7. See M.R. Balaji. v. State of Mysore (1963) AIR SC 649 [37]
8. See M. Nagaraj v Union of India (2007) AIR SC 71 [244].
9. General Manager, Southern Railway v Rangachari (1962) SCR 2 586 [27].
10. B.K. Pavitra v Union of India, (2017) 4 SCC 620 [107] (Chandrachud J).
11. See Thomas (n 3) [625].