Opinion - News Analysis

Three fatal flaws in the Rajasthan compromise

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Buying peace: Will the Vasundhara Raje–Kirori Singh Bainsla compromise stand the test of constitutionality?

The Rajasthan government has bought peace with the Gujjars by a please-all compromise that gives special reservations to Gujjars as well as to economically weaker sections in the unreserved category. Will this compromise stand the test of constitutionality in the light of Justice Jeevan Reddy’s majority opinion in the landmark Indra Sawhney case (Supreme Court, 1992)?

This controversy can be made sense of only if we first ask why we should have affirmative action at all. There are three distinct (if interrelated) goals of social justice — redistribution, recognition and participation. Redistribution emphasises on material equality, or at least a minimum degree of material wealth that should be accessible to all citizens. The classic example of redistributive justice is progressive taxation. Increasing access to wealth-generating skills to vulnerable sections and the National Rural Employment Guarantee Scheme are other examples of redistributive justice. Recognition, on the other hand, mainly concerns itself with cultural justice. The constitutional guarantee of cultural autonomy to linguistic and religious minorities under Articles 29 and 30 fosters respect for cultural diversity. Participatory justice requires that important public institutions should have adequate (though not proportionate) representation of all social groups. Reservations in legislatures and public bureaucracies seek this kind of justice. Although these three paradigms are not watertight, identifying the chief objective is useful to determine the content and limits of the affirmative action measure in question.

The constitution deals with equality as a general principle under Articles 14 and 15; and with equality of opportunity in public employment under Article 16. Although the Gujjar compromise mentions reservations in education as well, here we will only consider the promise of reservations in public employment, which appears to be its main thrust.

In Sawhney, the majority emphasised the participatory dimension of Article 16 by holding that its primary goal was ‘to enable them to share the state power.’ (paragraph 85) Admittedly, reservations in public employment have incidental redistributive implications. Yet, the separate constitutional treatment of public employment along with its explicit mention of ‘adequate representation’ makes it clear that the central purpose of Article 16 is to ensure participatory justice.

Two sub-sections under Article 16 merit our attention. Article 16(1) guarantees ‘equality of opportunity’ in public employment to all citizens. It is now clichéd to say that this is a rule of substantive rather than formal equality, and therefore allows the state to take affirmative action to ensure equality of opportunity for a group which will not be able to access it otherwise. Yet, the promise of equality is for everyone — affirmative action measures must strike a balance where they encourage participation in public employment of unrepresented groups without seriously undermining the access of those groups who are already well-represented. Equality of opportunity is a mandate for affirmative action and at the same time a determination of its limits.

Article 16(4) allows reservations in appointments in favour of ‘any backward class’ (BC) which ‘is not adequately represented’ in public employment. BCs include Scheduled Castes (SCs), Scheduled Tribes (STs) and ‘other backward classes’ (OBCs). Article 16(4) is a particular instance of the manner in which the state can pursue equality of opportunity guaranteed under Article 16(1). It was clearly held by the majority of the Supreme Court in Sawhney that Article 16(4) is exhaustive of any reservations made in favour of a BC (paragraph 57).

Article 16(1) may still be used for affirmative action in favour of those categories of people which are either not backward or do not exhibit characteristics of a cohesive class — like women or disabled persons. These ‘horizontal’ reservations cut across the mutually-exclusive ‘vertical’ reservations for BCs — so, if a disabled person also belongs to a backward class, she would count towards the BC quota as well as the disability quota.

The initial Gujjar demand was to be included in the list of STs, which was rejected by Justice Jas Raj Chopra Committee because they did not satisfy the criteria required to be so qualified. With this option not available any more, the Rajasthan government demanded a constitutional amendment to allow special provisions for Gujjars.

The Centre (rightly) rejected this demand. However, in its (non-committal) advice to the Rajasthan government, it cited the Maharashtra State Public Services Act, 2001 to suggest that Rajasthan may create a special category similar to ‘nomadic and denotified tribes’ under Article 16(1) distinct from SCs, STs and OBCs — if ‘making such a provision was necessary in public interest.’ While the special facts that will determine the constitutionality of the Maharashtra Act are not being considered here, the situation in Rajasthan is clear.

The second paragraph of the compromise agreement between Rajasthan government and Gujjar leaders says that ‘for the advancement of the socially and educationally extremely backward Gujjars, Gadia Luhars, Banjaras, and Raikas castes, a distinct category shall be constituted and granted 5 per cent reservation, without affecting the current percentages of reservations available to SCs, STs and OBCs.’ (emphasis supplied, our translation of the original Hindi text). Indeed, Gujjars are currently categorised as OBCs in Rajasthan. The Sawhney ruling that Article 16(4) is exhaustive of reservations for BCs will become meaningless if a government gives a backward class a new nomenclature to deem it to be ‘non-backward’ and thereby extends special reservation under Article 16(1).

An alternative suggestion came from P.S. Krishnan, Retired Secretary, Ministry of Welfare, in an interview to Frontline (21 June 2008). He argued for a sub-categorisation of the ‘most backward classes’ within the OBCs so that the former do not have to compete with the relatively more advanced of the remaining OBCs. Sub-categorisation has been upheld by the Supreme Court in Sawhney (paragraph 92A). If the State could show that Gujjars are indeed the most backward amongst OBCs, this alternative is eminently sensible and constitutional.

In Sawhney, the Supreme Court held that vertical reservations should not ordinarily exceed 50 per cent (paragraph 94A). This rough limit was identified keeping in mind the fact that equality of opportunity is for every citizen, including those who do not belong to a backward class. The principle is reflected in Dr. Ambedkar’s warning against ‘reservation … of such magnitude that the rule regarding equality of opportunity has been destroyed.’ (Constituent Assembly Debates, Vol VII, p 700-3)

Even the Maharashtra Act cited above limits the quantum of all vertical reservations to 52 per cent. A Tamil Nadu law which provides 69 per cent vertical reservations is currently under review by the Supreme Court. Unless the Court overrules Sawhney, or finds exceptional circumstances, this is likely to be held unconstitutional.

Sawhney held that under Article 16(4), an OBC must satisfy three criteria — (1) its members must have ‘common traits which distinguish them from others’; (2) it must primarily be ‘socially’ backward (educational and economical backwardness may be used only as a tool to determine social backwardness); and, (3) it is inadequately represented in public employment. (paragraphs 88A, 89) The majority was clear that backwardness cannot be determined exclusively with reference to economic criteria (paragraph 91). A particular clause of the Office Memorandum issued by the Rao government in September 1991 which reserved 10 per cent of the posts in favour of ‘other economically backward sections … not covered by any of the existing schemes of reservations’ was struck down by the Court. This ruling makes sense if one agrees that the primary purpose of Article 16 is to ensure participatory justice and not redistribution. The constitutional validity of 14 per cent quota for economically backward classes announced by the Rajasthan government is therefore doubtful.

The Rajasthan proposal has three fatal flaws — it tries to circumvent the rule that Article 16(4) exhausts reservations for BCs, which in turn must not exceed 50 per cent of the total seats, and it ignores the primacy of social backwardness under Article 16. The respite earned from the opportunistic compromise in Rajasthan is likely to be temporary.

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