Avoiding stance on reservations

Raja Sekhar Vundru

RESERVATIONS evolved in the last century as a remedy against discrimination and into a constitutional right. Dr BR Ambedkar famously fought with Mahatma Gandhi for the British policy of separate electorates, which ended in Gandhi agreeing to political reservations as a compromise. The emergence of reservations in education and jobs was again a pre-Independence policy of both the British and the princely states, and was integrated into the 1950 Constitution.

Political reservations that existed before 1950 for the minorities, untouchables and tribes were rescinded by Sardar Patel, save Scheduled Castes and Tribes, due to Ambedkar’s intervention and Nehru’s support in the Constituent Assembly, initially for 10 years, which invariably continued. Reservation of seats for SCs and STs was never challenged in the courts, nor did the courts take any adverse view. Political reservations for backward classes and women were introduced in panchayats and municipalities in 1992 and reservation for women was never challenged. Currently, reserved seats for backward classes are in a limbo because courts saw the absence of authentic population data. The fact that backward classes were never enumerated in Independent India has become a stumbling block, threatening political reservations and undermining accurate jobs and educational reservation for them.

Abhinav Chandrachud, prolific in his popular writings in the legal domain, has tried to pack a deeply fraught subject as a quickie, and given pro and anti-reservation arguments as a conclusion. He refuses to take a position. Unfortunately, on the subject of reservations, it’s difficult to be neutral. More so when the whole gamut has taken a twist after the 2019 arrival of Economically Weaker Section reservations and the consequent approval by the SC this year.

Chandrachud races us through the history of reservations in British India, focusing on Ambedkar and his Poona Pact with Gandhi; touches upon the emergence of tribes as a group for reservations and backward classes (non-Brahmin movement) of Maharashtra and Madras. He breezes past the famous reverse-discrimination Communal GOs (Government Orders) of 1921 of the Justice Party government in Madras, which restricted the monopolistic Brahmin domination in jobs. The author lets us know the journey of reservations in the Constituent Assembly and the role of Ambedkar. After Independence, the book jumps to 1990s of Mandal and the constitutional amendments to neutralise the Mandal judgment that adversely affected SCs and STs. The book briefly touches upon jurisprudence on the impact of marriage, conversion and inter-state migration on reservations and swiftly puts forwards the ‘neutral’ conclusion.

Chandrachud cleverly avoids controversies around the evolution of reservations for Muslims in British India. References to authentic works such as Ambedkar’s treatise ‘Partition or Pakistan’ would have given some perspective. The author also avoids the story of Sardar Patel’s insistence on abolition of all political reservations.

India’s constitutional mandate of political representation of Dalits, tribals, backward classes and women is unique. Parliament’s progression on cementing reservation opportunities in a country beset with inequalities is one of the remedial formulae against discrimination and bringing in an equitable society. The jurisprudence after 1950 starting with the Champakam Dorairajan case, which set aside reservations for a litigant who did not even apply for a medical seat, needs to be told. The story of judicial interventions on reservations will be incomplete without mentioning Ambedkar’s disparaging comments on the judiciary as the Law Minister in 1951 while moving the first amendment to the Constitution to neutralise Dorairajan:

“I would like to state notwithstanding what the House and some members are saying, that I have often in the course of my practice told the presiding judge in very emphatic terms that I am bound to obey his judgment but I am not bound to respect it. That is the liberty which every lawyer enjoys in telling the judge that his judgment is wrong and I am not prepared to give up that liberty.”

Even though SCs and Tribes were not a party to the OBC issue in the Mandal judgment, it unilaterally abolished reservation in promotions available to them. Parliament neutralised the Mandal judgment with the 77th amendment in 1995. Ensuing litigation resulted in a series of judgments against the 77th amendment in the 1990s, which led to a movement against five OMs (Office Memorandums) based on the judgments. Parliament reacted in 2000-2001 with the 81st, 82nd and 85th amendments to neutralise the adverse judgments. But reservation in promotions continued to be battered by litigation.

The book should have explained how the constitutional mandate of adequate representation in all classes of posts is yet to be achieved. Chandrachud misses the social movements’ flavour on reservations, keeping himself encased to the legal part.

Probably the author wished not to delve deeply into the subject, given his limitations on understanding the enormity and the controversy. Nevertheless, the book is an excellent beginner’s guide on reservations. We will have to wait for a larger treatise for insight to arrive at our own conclusions on reservations.

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