Getting round the Mandal verdict

THE ALMOST UNANIMOUS support the Constitution (90th Amendment) Bill received from the Lok Sabha is a classic instance of the mainstream political parties - national as well as regional - being only too ready to join forces on quota-related issues affecting the Scheduled Castes/Tribes and the Other Backward Classes, unabashed as they are about projecting themselves as the redoubtable champions of `social justice'. The legislation, providing for the exclusion of any backlog of reserved job vacancies from the 50 per cent limit, is part of the exercise the political establishment has embarked upon to counter the `inconvenient' aspects of the Supreme Court's momentous 1992 verdict in the Mandal case which placed the concept of `positive discrimination' in the correct Constitutional perspective and provided safeguards against the sort of abuses and distortions that have come to characterise its application over the years. Besides putting the 50 per cent cap, the apex court had laid down that the creamy layer within the notified beneficiary classes should be identified and skimmed off and mechanisms created to consider claims for exclusion from and inclusion in the reservation bracket and that the quota principle could not apply to `promotions'. While the governments have, by and large, fallen in line at least in the formal sense with the court directive pertaining to the creamy layer and the setting up of standing panels, the political parties, barring a few exceptions, have never been comfortable with the `backlog' and `promotion'-related injunctions, not to speak of the 50 per cent ceiling itself. And as early as in 1995 the P. V. Narasimha Rao Government formulated a five-point plan for neutralising these post-Mandal verdict `irritants'. Now the Vajpayee regime has moved swiftly in that direction, pledging itself to the ``undoing'' of the adverse impact of the ``offending circulars'' issued by the erstwhile United Front Government following the Mandal case verdict.

The biggest thorn in the flesh of the political class has, of course, been the 50 per cent limit, something States like Tamil Nadu operating an unconscionably high level of quotas have never reconciled themselves to. In fact, typical was Tamil Nadu's response to the restriction: it passed a special law to give a statutory basis for its 69 per cent quota regime and got the enactment included in the Ninth Schedule of the Constitution, which was supposed to provide immunity from judicial scrutiny. That the whole operation was a smooth affair, with a ministerial spokesman of the then Government at the Centre going to the extent of inviting other States to emulate Tamil Nadu, was an eloquent testimony to the vested interests which parties across almost the entire political spectrum have developed in the quota system. If successive governments have not gone ahead with removing the `hurdle' so far, it is evidently because the Supreme Court has before it petitions on the `ceiling'-related issues especially in the Tamil Nadu context. Witness the Union Law Minister, Mr. Ram Jethmalani's remarks in the Lok Sabha making it clear that the pending case was indeed what held the Government's hand. More striking was his assertion that, should the apex court rule against any relaxation of the 50 per cent limit, the Government would get round that verdict through amendments to the Constitution. The position Mr. Jethmalani has taken accords, of course, with the agenda of the National Democratic Alliance, and politically this may help the NDA partners, particularly the ruling DMK in Tamil Nadu (where the Assembly elections are less than a year away) in blunting any possible criticism by the AIADMK and other opponents that they have not done anything to `protect' the 69 per cent quota system. But the fact remains that the `quota regime' enunciated by the Supreme Court constitutes an optimal blend of the twin principles of `positive discrimination' and `right to equality'. Whether the realpolitik-driven statutory initiatives of the Government designed to perpetuate the abuses of the `reservation' concept will stand judicial scrutiny is also an open question.

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Section  : Opinion
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