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Mainstream, VOL LVIII No 10 New Delhi, February 22, 2020

Oppose the Recent SC Judgment on Reservation

Friday 28 February 2020, by D Raja

The Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBCs) have been provided with reservation in jobs and also in education in the government on the basis of constitutional and statutory provisions in order to address the problems of discrimination, inequality and deprivation caused by castes, which in the words of Dr B.R. Ambedkar constituted “ascending order of reverence and descending order of contempt”.

But ever since the BJP came to power with Narendra Modi as the Prime Minister, the RSS (Rashtriya Swayamsevak Sangh) has been raising the issue of reservation with a sinister motive—of ending the very state policy of reservation. The RSS’ top leadership had at one time called upon to put an end to reservation. Later it demanded a public debate on the merit of reservation. It is clear that the RSS, whose ideology is divisive, sectarian, Manuwadi and fascist, is opposed to social justice and to reservation. The BJP, being its political arm, is executing its designs manipulating the political discourse.

But what is shocking today is the recent Supreme Court verdict on the responsibility of States to provide reservation. A two-member Bench, consisting of Justices L. Nageswara Rao and Hemant Gupta, ruled that “Article 16 (4) and 16 (4A) are in the nature of enabling provisions, vesting a discretion on the State Government to consider providing reservation, if the circumstances so warrant. It is a settled law that the State Government cannot be directed to provide reservation for appointment in public posts. Similarly the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions.”

This ruling is a huge blow to the cause of social justice. It has created an uncertainty on the continuation of the very policy of reservation.

Article 16 (4) of the Constitution in fact states that “nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

The 77th Amendment to Article 16 (4) is to empower the State to make provisions for reservation in matters of promotion to SC/ST employees, if the State feels they are not adequately represented in services.

The present Supreme Court verdict counters the fundamental position of the Constitution and contradicts the earlier judgments of the Supreme Court.

The BJP Government is not doing anything substantial to undo this despite some rhetoric.

The situation in the country today is so grave. The government jobs are shrinking because of privatisation. Most of the jobs in the government are contractual in nature for which reservation for SCs, STs and OBCs is not applicable.

The withdrawal of the state from many key sectors and massive disinvestment of public sector enterprises are causing lack of employment opportunities in government and public sector.

There is greater and urgent need to protect reservations for SCs, STs and OBCs in government jobs and to extend the reservation to the private sector in tune with the objectives and constitutionally enshrined provisions in this regard. It is worth remembering what Mr K.R. Narayanan said in his Republic Day-eve speech in 2002.

“Indeed in the present economic system and of the future, it is necessary for the private sector to adopt social policies that are progressive and more egalitarian for these deprived classes to be uplifted from their state of deprivation and inequality and given the rights of citizens and civilised human beings. This is not to ask the private enterprise to accept socialism, but to initiate something like diversity bill and the affirmative action that a capitalist country like the US has adopted and is implementing.”

The Supreme Court, whether it is a two- member Bench or a five-member Bench or a seven-member Bench, being an apex body, should have taken the ground realities and constitutional provisions into consideration before pronouncing such a verdict.

At a time when the Constitution is under attack by Right-wing and fascist forces, the political democracy needs to be saved. Political democracy cannot last unless social democracy and social justice are at its base.

Reservation is an affirmative action and a necessary transitory measure to empower fellow citizens, namely, SCs, STs and OBCs who continue to suffer from caste-based discrimination at every step. As Dr Ambedkar had said that caste is a monster that crosses the path of these people. The inhuman caste system does not allow them to lead a life—a life with dignity.

The SC judgment has already created an uproar across the country. The people have no other option but to oppose this judgment.

(Courtesy: The Indian Express)

The author is the General Secretary, CPI.

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