Fallacy Of Supreme Court's Concern Over Revision Of Reservation Lists

On 22^nd April, a five-judge bench delivered a judgment authored by Justice Arun Mishra in Chebrolu Leela Prasad Rao & Ors. v. State of A.P. and Ors., wherein the bench made the following observations which have captured the attention of various stakeholders.

"Now there is a cry within the reserved classes. By now, there are affluents and socially and economically advanced classes within Scheduled Classes and Scheduled Tribes. There is voice by deprived persons of social upliftment of some of the SCs and STs, but they still do not permit benefits to trickle down to the needy. Thus, there is a struggle within, as to worthiness for entitlement within reserved classes of SCs and STs and other backward classes.

In our opinion, it was rightly urged by Dr. Rajeev Dhawan that the Government is required to revise the lists. It can be done presently without disturbing the percentage of reservation so that benefits trickle down to the needy and are not usurped by those classes who have come up after obtaining the benefits for the last 70 years or after their inclusion in the list. The Government is duty-bound to undertake such an exercise as observed in Indra Sawhney and as constitutionally envisaged. The Government to take appropriate steps in this regard."

Before discussing the socio-legal implications of the above observations, it must be made clear that the constitution bench was called upon to decide on a specific set of questions referred to it by a two-judge bench. The revision of the lists as felt necessary by the bench was not at all in question. Initially, the bench itself made some observations in this regard and subsequently drew legitimacy for its findings from advocate Rajeev Dhawan's statement, without inserting his full submission in the judgment. Thus, the court went beyond what it was asked to do.

In the paragraph quoted above, the bench said that now there are affluent and advanced members within the SCs and STs, though, it did not provide any empirical data to support its argument. The reality of reservation benefits is that it is largely limited to the lower cadre posts. The top positions and public institutions, in fact, exhibit upper-caste monopoly in India. The number of the members of SCs or STs occupying affluent positions, such as Supreme Court and High Court judges, professors, vice-chancellors, secretaries, joint secretaries, directors, commissioners, etc. is negligible, and in some cases, almost nil. There may be exceptions, but policies are never made based on exceptions to the generality of the society.

In the absence of empirical proof to the contrary, the "affluence" theory as put forward by the bench falls short of a reasoned order. It is a perceptionist text rather than a rational one, with an aim of extending benfit to largest numbers. Thus, what the court presented as the whole truth, is true only to a limited extend. The very fact that there are only a limited number of judges functioning as High Court and Supreme Court judges from the SC/ST is the most accessible data and speaks loud and clear as to the level of "affluence", and the skewed representative character of the institution. In some of the High Courts, appointment from Dalit community has not made even for a decade.

Moreover, getting a government job does not guarantee that a dalit is free from caste-based discrimination. Many times discrimination and harassment begin in multiple new forms after getting a government job, which, in some cases, has led to suicides as well. In such a situation, one wonders, how much "affluent and advanced" dalits become, after getting government jobs!.

To apply the "affluence" principle to the SCs and STs also, the Court has not followed the precedents in its form. The bench cited a long paragraph from the nine-judge bench judgment in Indra Sawhney and Ors. v. Union of India and Ors., (1992) which explained as to why the advanced members of the backward classes should be excluded from reservation (emphasis added). While citing the relevant paragraph from the Indra Sawhney decision, the bench highlighted in bold letters the following sentence: "For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit." At the same time, the bench ignored the word of caution added by the seven-judge bench at the end of the paragraph that "This discussion is confined to OBC only and has no relevance in the case of SCs and STs". Similarly, to support its intention to revise the lists, the bench quoted the following sentence from the Indra Sawhney judgment: "that does not mean that those lists are meant to be sacrosanct and unalterable". However, the bench missed out the fact that the observation was actually made by the nine-judge bench in the context of reservation to the OBCs only. Thus, the bench in the present case chose to read the Indra Sawhney judgment as per its convenience. It stressed on the revision of the lists unconstitutionally, the reasons for which are not difficult to comprehend.

Most importantly, while suggesting the "affluence" theory, the bench overlooked the rational of providing for reservation, that is inadequate representation in the services of the State as explicit under Article 16(4) of the Constitution and the Indra Sawhney judgment.It suggested introduction of the "creamy layer" concept in respect of reservation for SCs and STs also, which is unconstitutional

Another part of the judgement that deserves scrutiny is the following:

"It was envisaged that social disparities, economic and backwardness should be wiped out within a period of 10 years, but gradually, amendments have been made, and there is no review of the lists nor the provisions of the reservation have come to an end. … It is very hard for any elected government to have the political will to meet with the challenges arising out of the aforesaid scenario. …"

It is evident that the court was wrong while referring to the ten-year limit in the context of reservation in employment, because the said limit was originally made applicable in relation to reservation of seats for SCs and STs in the House of the People and the Legislative Assemblies of the states under Article 334. The statement from SC perpetuates the confusion about the reservation law and caters to the popular sentiment against reservation.

In the above-cited paragraph, the bench while talking about the political will of an elected government certainly suggested that the judiciary can do what a government finds difficult. The way the bench has made the aforesaid observations, seemingly, it is looking at issues from government's perspective, it is not the business of the court to frame policies or substitute. The observations suits the political executive as it can disclaim any responsibility and put onus on courts.

So far as the implementation of the court's conclusion on the lists is concerned, the government cannot take any action as of now, because the court neither "ordered" nor "directed" it to do so. However, it is definitely a beginning of an unpleasant exercise open to abuse in future.

The social implications of the court's findings may have far reaching effects. By dividing the members of SCs and STs into the affluent and the deprived groups, the observation of the bench may weaken the solidarity they share against the oppressive institutions. The observations though made with right intentions, has affected the very cause of Dalits in the country. Particularly, in our country, it is a norm to record "not-found-suitable" (NFS) remark by the interview boards in respect of the candidates of SCs and STs during interviews, especially in recruitments to higher echelons of the government.

Indeed, the bench has rightly pointed out that the benefits do not trickle down, however, the blame on the so called "affluent" members of the SCs and STs seems misplaced and not data driven.

(The author is Assistant Professor at Campus Law Centre, Faculty of Law, University of Delhi. The author expresses gratitude to Anumeha Mishra, Haris Jamil and Sujith K. for their suggestions. He may be reached at kailash333bj@yahoo.co.in. Views are strictly personal)