Zero-sum game

The 10 per cent reservation for the “economically weaker sections” is hailed by ruling and opposition parties alike, but experts raise doubts over its practical implementation and constitutional validity.

BJP workers celebrate the passing of the reservation Bill in Parliament, in Mumbai on January 10.

THE Union government’s move to provide 10 per cent reservation for the “economically weaker sections” not only evoked widespread support across party lines but also gave rise to a similar strain of interpretation. The sudden move by the Narendra Modi-led government was likened to the demonetisation announcement of November 8, 2016.

Of course, the interpretation by parties in the ruling dispensation hinged on the “surprise element” of the move, credited primarily to Modi, and its phenomenal success in bamboozling the opposition parties and putting them in disarray. The opposition was of the view that the Prime Minister and his associates in the National Democratic Alliance had embarked on an ill-thought-out, ad hoc operation just like demonetisation, although the concept of reservation for the “economically weaker sections” was a welcome one.

Congress leader Kapil Sibal, Communist Party of India (Marxist) general secretary Sitaram Yechury and Dravida Munnetra Kazhagam leader Kanimozhi flagged this aspect forcefully. They pointed out that Modi and his associates had taken up the proposal as a short cut to manoeuvre around the electoral and political reverses the BJP suffered in the latest round of Assembly elections and the charges about governance misdemeanours against the government, including corruption charges in the Rafale defence deal. The BJP had lost to the Congress in the three Hindi heartland States—Rajasthan, Madhya Pradesh and Chhattisgarh. Sibal and Kanimozhi raised the point when the Bill on the reservation proposal was discussed in the Rajya Sabha.

Those who drew parallels to demonetisation from the ruling side included people positioned in different slots of the organisational echelons of the Bharatiya Janata Party and the Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar. From senior leaders to middle-level activists to grass-roots level workers, the refrain was that in one stroke Modi had brought a fight-back spirit into the party and along with it diverted public attention from controversial issues such as Rafale and blunted the edge of the opposition campaign.

This sentiment manifested itself strikingly among a small group of party workers who had come in from Uttar Pradesh and Bihar to the national capital ahead of the BJP’s National Executive Council meeting on January 11. Even as they were engrossed in taking stock of the preparations for the meeting at Delhi’s Ramlila grounds, their engagements with leaders of the party and the media repeatedly brought up the “diversionary potential” of the issue and the “manner in which the opposition had been befuddled by this demonetisation-type move”.

There is considerable merit in both points. There is little doubt that the government’s sudden move exposed its sense of panic at the recent and stunning electoral reverses and the desperation to recapture the BJP’s erstwhile popular appeal. More specifically, there are sections of the BJP’s upper caste vote base that has shown signs of disillusionment. The “recapture” project on this reservation plank targets them specifically. On the other hand, there is little doubt that the manner in which the operation was executed caught the opposition by surprise. Despite the criticism it raised in both Houses of Parliament, the opposition was compelled to follow the government line without being able to force any substantive correction in an evidently ad hoc legislation.

The immediate trigger

The trigger for the sudden move, according to highly placed sources in the BJP, was the substantive rise in the share of NOTA (None of the above) votes in Madhya Pradesh and its impact on as many as 22 Assembly seats in the State. The BJP lost 13 of the seats to NOTA. The party leadership’s assessment was that upper caste resentment against the Union and State governments led to the party’s defeat in these NOTA-dominant seats and in many other seats.

The 10 per cent reservation for the “economically weaker sections”, these BJP sources argue, has been a long-standing demand of upper caste organisations. According to them, giving it a constitutional sanction can help win this section back to the party. The upper castes form the BJP’s core voter base. Along with winning back this core base, the BJP leadership is also of the view that it will help neutralise caste groups such as Jats which periodically launch agitations demanding Other Backward Class (OBC) status across various States.

A section of the BJP leadership is also of the view that this manoeuvre will neutralise the demand of powerful middle castes such as Patels, Jats and Marathas for OBC status. The demand of the Patidar community for reservation and its agitation with regard to it had hit the BJP’s fortunes in the Gujarat Assembly elections in 2017.

Practical issues

However, beyond all these sociopolitical calculations, the biggest question is about the practical issues relating to the implementation of the proposal. Put simply, the implementation process is beset with many daunting problems, starting with constitutional issues. Although 10 per cent reservation for “economically weaker sections” has been accorded some sort of constitutional sanction through the Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019, that sought to amend Articles 15 and 16 of the Constitution, several experts are of the view that the proposal may not be implementable. Retired civil servant P.S. Krishnan, an authority on reservation issues who served as Secretary in the Ministry of Welfare during the implementation of the Mandal Commission Report on OBC reservation, is of the view that the proposed law breaches the basic structure of the Constitution.

The other problematic component of the proposal is the economic parameter mentioned therein. These parameters state that people earning less than Rs.8 lakh annually will be identified as economically backward. However, families that own agricultural land of more than five acres, a house above 1,000 sq. ft, or 100 yard plot or above in a notified municipal area or a plot of 200 yards or above in a non-notified municipal area will not be eligible to avail themselves of the benefit of this reservation. If one were to go by the National Sample Survey Office (NSSO) 2011-12 report, almost all households would qualify for the reservation benefit. The key indicators of household consumer expenditure—monthly per capita consumer expenditure based on modified mixed reference period method of measurement—show that even if five persons in a household are earning, their monthly income is less than Rs.66,666. Clearly, this, too, has left many baffled.

Talking to Frontline , Krishnan pointed out that “reservation in India is for those who are unable to get their due because of an oppressive social system, which has marginalised the Scheduled Castes [S.Cs] and the Scheduled Tribes [S.Ts] as well as many OBC communities for centuries. The reservation system in India is not meant as a tool of poverty alleviation. It is meant to empower those who are disabled historically.” Krishnan added that the oppressive system was still viciously active. He further said that a similar exercise was undertaken by the P.V. Narasimha Rao government in 1992, albeit without constitutional amendment.

A nine-judge bench of the Supreme Court struck down the Narasimha Rao government’s move after the advocate Indra Sawhney filed a petition against the government decision. “History is bound to repeat itself, with PILs [public interest litigation] already filed against the current move of the government. The 1992 verdict, too, had made it clear that the ‘backward classes’ mentioned in Article 16(4) of the Constitution can be identified only on the basis of caste and not on the basis of economic conditions,” Krishnan said.

Indra Sawhney has stated that she is considering moving the Supreme Court against the current government’s move. “This move would take the ceiling to 60 per cent and deserving candidates in the open category will be left out. Hence, the amendment needs to be struck down,” she told the media. She further pointed out that the economic criterion laid down would cover nearly 90 per cent of the population of India, thereby depriving a substantial minority of their right to equality and recognition of the right to be selected on merit in open competition. Therefore, it would be against the basic structure of the Constitution, she said.

However, the BJP leadership and large sections of the party’s rank and file do not see much value in these observations. Many of them are of the view that this move could give the BJP the kind of electoral benefits that Mandal bequeathed to OBC-oriented parties such as the Samajwadi Party, the Rashtriya Janata Dal and the Janata Dal (United).

The argument goes further with assertions that the proposed reservation will be over and above the existing 50 per cent reservation enjoyed by the S.Cs, S.Ts and OBCs. This balance, these sections argue, will be a clear winner all through. Given the confusion that the proposal has created, among the supporters and the opponents of the current dispensation, there are bound to be no clear winners in this political game.