Supreme Court, Reservations and Beyond

The recent Supreme Court order on staying the OBC reservation in centrally funded educational institutions should be viewed as a significant event in the post-Mandal era. The arguments for and against reservations are well known.^[1] It requires a different kind of polemics, standards and value judgments for any reasonable debate to occur. We all know that is impossible in today's India. Hence I want to move away from it and focus on how this debate is likely to play out in the political arena and what it will entail.

First and foremost the central challenge this issue poses to our republic is to the overall constitutional scheme in lending the power of State to affirmatively discriminate and simultaneously retaining the essential character of equality of the citizenship. Any such boundary between these two conflicting imperatives cannot be set in stone nor can the causal factors be easily benchmarked. Such a boundary will be ultimately a function of the political forces that our republic will produce. No group of judges in the Supreme Court, now or in the future can thwart or push back this line for any reasonable period of time.

Since the issue being constitutional in nature, it is prudent that it be settled within the parameters of the current constitution. With all their short falls, the present constitution endowed to us was created by the giants of our time. This issue was beyond even their capacities; that's why we see such lack of clarity and tenuousness in how this issue figures in our constitution. Perhaps they hoped that with passage of time and more economic development and equity in the society, the sanity of better angels would prevail. The failure to codify any sunset clauses for reservation and the failure to strictly deal with the definition of 'backward' and 'discrimination' is bedeviling us. Ambedkar's hope was that this issue will not be relevant for too long have been nullified.

Once the State has been granted the power to determine who constitute the "socially backward classes" and the power to provide active discrimination for them, the genie was out of the bottle. Now any attempt to curtail it on the basis of Article 16/ equality is going to be nebulous at best. Any attempt to invoke the creamy layer or require recent data will/can be easily shot down by the legislature, as they do not find mention in the constitution. If the parliament goes ahead passes constitutional amendments enumerating its power to provide reservation without creamy layer exceptions and/or providing recent caste census or rationale, then the last resort will be for the Supreme Court to rule those amendments unconstitutional invoking the 'basic structure' doctrine. If that happens, what will be next?

The voices headed by Karunanidhi that we need a 'new' constitution will reach a crescendo. For a person who was mourning on our independence day and whose party refused (or failed) to get to the original constituent assembly, this indeed is audacious. But today's realities are different. Such a development is terrifying only because it is possible. There are very few states in India where the OBC political power can be reasonably checkmated. With the flurry of castes being blessed as 'backward' everyday, the arithmetic is heavily loaded in their favour. Himachal Pradesh, Uttarkhand, J&K, North-eastern states and probably Punjab will be against this. Even they could be compromised by evolving a formula wherein they get to choose their own mix for reservation.

Having painted the doomsday scenario and this being late in the night, I need to present an optimistic ending so I can go to sleep peacefully. My primary source of optimism is in the diminishing role and effectiveness of the Indian State in influencing the role of our citizens. This may seem like a cynic's optimism. However in today's globalizing world, the role of private sector and those dreadful 'foreigners' are on the increase. The other day I just saw Karunanidhi signing the bonnet of first car out of BMW factory in Chennai, just the day before he imperiously sat on an 'all' party meeting to force a bandh in the state against the Supreme Court order. These two images are inherently incompatible: in the long run, they are headed for collision.

The other source of optimism is that once the entire course of this meal has been run out, successfully or unsuccessfully, the latter being more likely, the 'panacea' effect will wear out of the drug and its placebo effect will become more and more apparent. With the increase in literacy and awareness, the issue will lose its potency to emotionally charge the vote banks. On a serious note, when this happens, fissures are likely to develop within this 'reservation' coalition, most likely between the dalits and OBCs, or between the OBCs and the 'most backward' of the OBCs. When these fissures erupt out in the open the current OBC power holders are not likely to relinquish easily their 'hard earned' fruits but likely to talk the 'lingo' of meritocracy than in advancing a further generation of reservation and retooling it. Because adopting the latter strategy will not be electorally attractive as the share of the pie will get smaller and smaller. But I do concede that all or some of these predictions are likely to fail. Who can bet against India?

However there is a short term hope which is getting slimmer and slimmer and that is for the two serious stakeholders in the system Congress and BJP to silently come together with the following aims: to keep the process of providing constitutionally viable affirmative access in reasonable ways, keeping the extremists on both sides away from overreaching and forcing a showdown, growing the economy and improve the general governance gradually and ultimately obviating this issue.

^[1]

The best arguments against Mandal commission implementation in Parliament were made by none other than Swargiya Rajiv Gandhi. See Link.