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Mainstream, VOL 60 No 47 November 12, 2022

Is EWS reservation an appeasement of upper caste? | Faraz Ahmad

Saturday 12 November 2022, by Faraz Ahmad

‘The spirit behind the [Economically Weaker Section] EWS law (now ratified by our highest court) achieves exactly what it aims for and struggles hard to avoid stating openly—reservation for the Hindu upper caste’, observed Sociology professor of Delhi University Prof. Satish Deshpande, reacting to the majority judgement of the Supreme Court on November 7, the last working day of the outgoing Chief Justice of India, Justice U.U. Lalit. Significantly Justice Lalit and Justice Ravindra Bhat dissented in the five-judge bench comprising, apart from these two honourable judges, Justices Dinesh Maheshwari, Bela M. Trivedi, and J.B. Pardiwala who upheld the 2019 103rd amendment of the Indian Constitution by Modi government, awarding 10 per cent reservations for the “economically backward” whose annual income did not exceed Rs 8 lakh.

Sounds far fetched and alarmist? Absolutely not. Implicitly alluding to the upper caste apartheid practice against the backwards and Dalits still prevalent in rural and mofussil India, wherein the Dalits are forbidden to drink from upper caste wells lest they pollute and render these non-potable for the ‘Savarnas’ Prof. Deshpande interpreted the Supreme Court decision thus: “Supreme Court has ensured that the upper castes can now drink from the only well that was forbidden to them.”

But this is not just an academic view. Justice Ravindra Bhat who wrote the dissenting judgement for himself and the Chief Justice, also made observations on similar lines. He wrote, “This court has for the first time, in seven decades of the Republic sanctioned an avowedly exclusionary and discriminatory principle….This exclusion violates the non-discrimination and non-exclusionary facet of the equality code, which thereby violates the basic structure of the Constitution.”

Justice Bhat observations were in the context of the reasoning forwarded by Justices Trivedi, Pardiwala and Maheshwari in their respective observations. Justice Trivedi for instance reminded that the reservations for the scheduled castes and tribes as envisaged by the framers of the Indian Constitution was time bound initially for only ten years and therefore, “At the end of 75 years of our Independence, we need to revisit the system of reservation in the larger interest of the society as a whole…”

Agreeing with this, Justice Pardiwala too sought to end the reservations for the SCs, STs and OBCs stating, “As larger percentages of backwards class members attain acceptable standards of education and employment, they should be removed from the backward categories so that attention can be paid towards those classes which genuinely need help. In such circumstances, it’s very much necessary to…ascertain whether the criteria adopted or applied for the classification of the backward is relevant for today’s conditions.” Incidentally the Supreme Court in its Indra Sawhney case judgement while upholding the implementation of Mandal Commission report by V.P. Singh government in August 1990, also prescribed excluding the “creamy layer” from the benefit of OBC reservations. And the government prescribes those among OBCs earning Rs 8 lakh or more as “creamy layer” to be excluded from the reservation benefits.

On the other hand the 103rd amendment to the Constitution of India while providing 10 per cent reservation for the “economically backwards” set Rs 8 lakh as the ceiling criterion for economic backwardness. Whereas if the income of an OBC family is Rs 8 lakh his children belong to the creamy layer not entitled to avail of the reservation.

Justice Maheshwari who wrote the majority judgement went a step further. He in fact excluded the OBCs, Dalits and tribals from availing of economic backwardness even if their income limit is in consonance with the Government’s prescribed limit of Rs 8 lakh per annum. Justice Maheshwari wrote, “exclusion of the classes covered by Articles 15(4) AND 16(4) –the Socially and Educationally Backward Classes (SEBC) Other Backward Classes (OBC), Scheduled Castes (SCs) and Scheduled Tribes (STs)—from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of non-discrimination, and compensatory discrimination, does not violate the equality code and does not in any manner cause damage to the basic structure of the Constitution of India.”

Insisting on keeping the OBCs, Dalits and tribals out of the purview of this reservation whatever their economic status be, Justice Maheshwari observed, “Viewing this affirmative action of EWS reservation from the standpoint of backward class versus forward is not in accord with the very permissibility of compensatory discrimination towards the goal of real and substantive justice for all.”

Satish Deshpande therefore commented that, “A new chapter begins in the long saga of the appeasement of our most powerful and most pampered minority.” It is nobody’s case, though that the state should not provide for the poor, whatever their caste or religion be. Most developed nations have a social security system and India under Modi now claiming to be a Vishwa Guru, is obliged to implement a social security system which should cover all the needy. But one, it has to be non-discriminatory and non-exclusionary. Only then it meets the Constitutional safeguards. Second no one earning an income of Rs 8 lakh per annum can be considered economically backward. What is bad for twiddle dee is bad for twiddle do as well. But as Deshpande comments this is a surreptitious means to appease the upper caste, seething with rage for last several decades over reservations for the Dalilts, tribals and OBCs.

What is really heart-breaking is the reaction of most Opposition parties with the vocal and loud exception of Dravida Munnetra Kazhgam (DMK) and the rather muted opposition from Lalu Prasad’s Rashtriya Janata Dal (RJD). The Congress and even the Communists, who possess enough intellect to understand its consequences, have rushed to welcome it. Perhaps they fear losing the upper caste voter which is anyway hugely tilted towards the BJP and neo saffronisation. Most shocking is the welcome by Bahujan Samaj Party (BSP) chief Behen Mayawati. She seems to have even forgotten Manyawar Kanshi Ram’s call: ‘Jitni jiski sankhya bhari, utni uski bhagidari (to each according to its numbers, in population)

It is therefore time for the Dalits, tribals and backwards to see that the upper caste system is successfully marginalising them. But then by now they have also to realise that nothing comes free. You have to struggle to achieve and get something. We Indians struggled hard under the leadership of Mahatma Gandhi and Pandit Jawaharlal Nehru to secure independence from British raj and paid a huge price by way of the partition of the country. The reservation for the SCs, and STs was again achieved by a long struggle under the leadership of stalwarts likes of Mahatma Phule and Dr. B.R.Ambedkar. The OBCs got reservations through one stroke of pen by V.P.Singh. That is why they are also losing it so easily to the saffron brigade, even after ruling North India for thirty years because they never struggled for it. Let them learn the lessons the hard way.

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