The Supreme Court’s interim judgment in the Ashoka Kumar Thakur vs. Union of India and Ors. granting a stay on the OBC reservations in Central Educational Institutions requires a careful study and I intend to do it in the coming days. Meanwhile, I am looking forward to reading what my colleagues on the blog would say, after they read it, and reserve my comments till then. However, certain statements made in the petitions challenging the Act are disturbing. They have said that the OBC reservations –as they exist now without a valid “data base” – would further exacerbate the caste divisions in the society, and that the political class is perpetuating it for the sake of vote-bank politics. A partial stay of the Act by the two-Judge Bench on the basis of this petition, therefore, is bound to cause concern. The Arijit Pasayat-Lokeshwar Singh Panta Bench which gave the interim partial stay has unwittingly contributed to the general distrust or cynicism of the political class by the citizens. This has ominous portents for the democracy. The immediate impact could be seen in the heckling of the human resource development minister Arjun Singh by anti-reservationists at the JNU.
It is indeed debatable whether reservations widen caste divisions. That apart, what exactly is “vote-bank politics,” that has acquired a pejorative meaning all these years? Is it cultivating a group or class of voters, and appeasing them, so that that class votes enbloc to a political party which has seemingly benefited them? Is there any evidence of voters of a caste voting together to a party because it is perceived to have extended quota to them?
Since all parties endorse the quota policy, the perception that one party stands to gain more from the policy than the others is not at all convincing. Look at the Central Educational Institutions Act 2006 , section 6 of which has been stayed by the Court. It was passed unanimously by all the parties in Parliament. The Government brought forward such a Bill, because all parties had urged it to bring forward such a Bill. Thus neither the Government or its allies nor the Opposition could claim credit for the Act, and translate them in terms of votes.
So, the Supreme Court -which prima facie finds substance in petitioners’ claim -must be really livid at the way all parties equally eye the vote-bank represented by the beneficiaries of the Act.
Is it wrong in a democracy to woo those sections of the population perceived to be downtrodden, and historically discriminated? Is it wrong to devise Government’s policies, and draft laws to ameliorate the lives of these sections – even if they vote different parties, on the basis of their perceived degree of commitment to their welfare? Looked at from this sense, does not vote-bank politics promote the accountability of the political class, that it is always on tenterhooks, as to their commitment or the perceived commitment to the welfare of the underprivileged. So next time, when anyone blames the political class for its vote-bank politics, it should take it as a compliment, rather than as an affront.
But the underlying signals from the Bench, are worrying. People’s confidence in the efficacy of institutions other than the Judiciary, could be shaken. This universal cynicism and the complete distrust of the legislature and the people’s representatives might become a norm, following the Judgment, and this could lead to all-round defiance and lawlessness, leading to the Judiciary strangely coming to the defence of such law-breakers, (after all, how would you describe the anti-reservationists, who at the heat of their agitation, even used racist arguments against all reservations, including that of the SC and ST, and refused to recognize even Constitutional imperatives, and Judicial pronouncements) as opposed to the law-makers.
I have read your post with quite interest.
Although your argument about the populist measures and their appropriateness may be valid- we have to understand that reservations lgally are an exception to the Right to Equality. (This is not to say that they are against equality.) Yet, if the historical injustices are ignored for argument’s sake- then reservations do allow an unequal upperhand to one citizen over another. This is where the judiciary steps in. It has the responsibility to ensure that Right to Equality is NOT violated!!
And in an attempt to protect the Right to Equality the judiciary has to question the legal validity of the Parliament’s move. Here is where the problem begins.
The judiciary contends that the OBC law in question cannot be implemented because no relevant data exists. Some political figures (read Karat and brigade) have tried to sound big by saying that the judiciary’s observations are contradictory because of its own acceptance of the OBC data in the Indra Sawhney case. This is where the Bench has hit- it contends that the law for the Public Sector employment (Article 16) is diffrent from the Right to Equality (Article 15) and the Indra Sawhney case was considered according to the Article 16 and not Article 15.
Also, the government has failed to deliver what had been coined in the Backward Classes Act, which is the periodic removal and addition of classes from the OBC list. In short, even on that count the OBC list is questionable. The court has also clarified that caste alone cannot be used for the determination of the OBCs- that can only be accepted as a criterion for the initiative.
Furthermore, the court has directed observation to the NSSO data that suggests that economic backwardness is directly linked to social and educational backwardness. This makes the inclusion of the creamy layer in the reservation benefit all the more difficult!! Also, it could pave way to the argument that economic sufficiency can be used as a proxy to backwardness just like caste is used!!
There are more things in the order which can be accessed at http://www.esnips.com/nsdoc/bf57d701-fe98-4acc-93a4-bd31f6c0585a
Dear Manish,
Thanks for the response.
You have said reservations are an exception to the Right to equality. Article 16(4) and Articles 15(4) and (15(5) are not exceptions to the main article, but have been recognised as substantive rights themselves in the sense they add substance to the main article. Without these balancing rights, the right to equality would be a sham, because you cannot ensure equality among unequal people.
Let judiciary question the legal validity of any Act. But let it not stay the operation of an Act in an unreasonable manner, as it has done now.
The question of data has been answered at length in my recent post. In fact, the judiciary is not clear what data it wants. Can you ask poor people through a survey, whether they are poor, in order to find out whether they are eligible for the benefits of poverty-alleviation programme. Can one argue that just because he is paying taxes, his taxes are being spent on these programmes, whose benefits are not reaching the needy, and poverty not yet eradicated, let the Govt. first come out with data on poor, and the beneficiaries, and stop these programmes till then? Ideally, these must go together, and if there is a grievance about unintended people getting the benefits, there is a procedure available for remedy. The petitioners simply not used it, and instead invoking the PIL short-cut, to embarrass the governance through judiciary.
I think it is the judiciary which is inconsistent. It is true that Indra Sawhney was decided with reference to 16(4). But the principles are applicable to 15(4) or 15(5). In a sense, creamy layer was evolved with reference to 16(4). Can the SC complain now that it must to 15(4) or 15(5) as well because both depend on the same data? The Central Govt. has clearly explained why creamy layer is not applicable to 15(4). In jobs, you start earning straightaway. In education, you begin to spend on coaching even before you write your entrance. You need money and resources, good family background. And the gap between the cut-off points are not very big as compared to services, so competition is tough, and if you skim off the creamy layer, the OBC quota will remain unfilled. This has been the experience in some States.
On your other arguments, I suggest you read my recent post.