Bending the Constitution, backwards PDF Print E-mail
Wednesday, 21 June 2006 00:00
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You just have to implement reservations, politicians tell you, it’s mandated by Parliament, by the Constitution, and besides, since the OBCs have such a low share in education and decent jobs, something needs to be done. A series of news stories, editorials and signed columns in this newspaper have already debunked the myth of this, and they conclusively show that if the share of OBCs and even SC/STs is low in top jobs, it’s because their share in college is low and that, in turn, is low because their share in school is low.
What of the mandate by the Constitution, of Parliament? Well, given that in its 56 years of existence, the Constitution has been amended 93 times as compared to 27 times in 217 years of the US Constitution, it’s logical to argue that a book that is so amenable to revision isn’t as holy as it’s made out to be. Indeed, as Arun Shourie shows in his wonderfully documented book, the country’s founding fathers were against reservations, though they reluctantly agreed in the case of Scheduled Castes—but only for ten years.
Not only did their successors fail them by extending the time period indefinitely, issues such as reservation for OBCs were never part of the Constitution but just brought in through sleight of hand. And when the courts objected, the legislators simply amended the Constitution. It is, of course, unfair to single out just the legislators. Shourie gives ample evidence of the higher judiciary being part of the “descent”.
The OBC story, of course, begins with Mandal, whose basic report is based on the 1931 census (never mind that Pakistan, Sri Lanka, Bangladesh and Burma are not part of the country anymore!), which did not even collect caste-wise data for 40 per cent of the population, and admitted the data were “too sketchy and scrappy for any meaningful inference which may be valid for the country as a whole”. There were other major methodological flaws, but the most serious (hilarious?) one was that while it tabulated data from the 1931 census on caste, it labelled them “Class”—this was critical since Article 16(4) of the Constitution had a proviso which allowed for the possibility of reservations for “any backward class of citizens”. Other Backward Castes became Other Backward Classes overnight. Not surprisingly then, Justice Kuldip Singh said the “so-called ‘socio-educational field survey’ was an eye-wash” and later went on to say the report was “constitutionally invalid and cannot be acted upon”. Of course, it was acted upon.
The other instances are equally telling. In one case, a student went to court since he did well in the exams but did not get admission as an SC student who’d done worse had to be admitted under the quota. Since Article 29(2) says no one is to be denied admission to aided/funded institutions on grounds of caste, the Supreme Court said this was illegal. Immediately, the Constitution was amended, and a new clause added to Article 15 which allowed the state to take measures to help the advancement of any socially or educationally backward class or SC/ST.
In the landmark Indra Sawhney case, the Supreme Court ruled that reservations could not exceed 50 per cent of the jobs being filled. Since Tamil Nadu had 69 per cent reservation, the state challenged this, and the Court rejected its argument. So, in November 1993, the Tamil Nadu Assembly unanimously passed a resolution asking the Centre to amend the Constitution—and in 1994, this was done.
It’s the same story over and over. When the courts ruled that education standards could not be relaxed as the administration’s efficiency would fall, the Constitution was amended yet again (the 82nd time).
As for the “creamy layer” of OBCs (those who’re well off), the courts were very clear that they must get no reservations; since the provision was for a “class”, its members had to be homogeneous, which meant the exclusion of the higher-income fraction. How did the Kerala government, which bore the court’s censure, react? You guessed it—by changing the law with retrospective effect. Now even the UPA government at the Centre is refusing to keep the creamy layer out of its proposed reservations.
Reading Shourie’s book could make your blood boil, but at the same time it makes one thing clear: there’s no point going to courts, for they’ll either ratify what’s going on or will simply be ignored.
Arun Shourie
ASA / Rupa & Co
Price: Rs 495; Pages: 378




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