Periodically Review Reservations, Slowly Reduce Quotas For Classes That've Developed: Justice Nariman

Delivering a lecture at the Kerala High Court, former Supreme Court judge Justice Rohinton Fali Nariman said today that the reservation policy in India, though introduced initially to cater to the needs of the day, has not worked as envisaged by the founding fathers of the Constitution.

The judge suggested that the National Commissions for Scheduled Castes, Scheduled Tribes and Backward Classes should be empowered with ground-level staff to see that the reservations alleviate those they are meant to alleviate, "after which finally like old soldiers the entire thing will vanish away".

"We have these Commissions...they have to submit reports every year. It's only when they submit a report saying that say, backward class X alongwith A and B, seem to have availed enough in terms of the reservation and therefore they seem to have joined the main stream...so slowly start deleting them from these lists, which would therefore be a process where the reservation tapers down to those who deserve it and then slowly, when everybody has reached a certain level, goes out. But it's a slow process...What I would say is that there should be a periodic review...after that periodic review, slowly and steadily, if the policy if working, one must make it shrink so at some point of time not only will the percentages come down...finally they will disappear."

Justice Nariman was speaking at the 10th Justice VR Krishna Iyer Memorial Lecture organized at the Kerala High Court on the topic "Economic Criterion and Sub-Classification of Scheduled Castes-Has Reservation Eclipsed Merit Altogether?" Former SC judge-Justice KM Joseph, Chief Justice Nitin Jamdar and Justice AK Jayashankaran Nambiar of Kerala High Court, and former Kerala High Court judge-Justice K Balakrishnan Nair also presided over the event.

The lecture was organized under the auspices of the Sarada Krishna Satgamaya Foundation for Law and Justice.

During his lecture, Justice Nariman primarily dealt with two Supreme Court judgements - (i) Janhit Abhiyan v. Union of India and (ii) State of Punjab and Ors. v. Davinder Singh.

In Janhit Abhiyan, a 5-Judge Constitution Bench upheld by 3:2 majority the validity of 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment. As per the majority view, reservation structured singularly on economic criteria does not violate the basic structure of the Constitution and breach of 50% ceiling limit by EWS reservation does not violate basic structure. The dissenting minority view (of Justice Ravindra Bhat and then CJI UU Lalit) opined against breaching of the 50% ceiling in matters of reservation and held that by excluding the poor among SC/ST/OBC from economically backward classes (on the ground that they have enjoyed benefits), the 103rd Amendment practiced constitutionally prohibited forms of discrimination.

In Davinder Singh, a 7-judge bench of the Supreme Court, by 6:1 majority, held that sub-classification of Scheduled Castes is permissible to grant separate quotas for the more backward within the SC category. The majority overruled the EV Chinniah judgment of 2004 which held that sub-classification was not permissible. The Court clarified that while allowing sub-classification, the State cannot earmark 100% reservation for a sub-class. Also, it has to justify the sub-classification on the basis of empirical data regarding the inadequacy of representation of the sub-class. Subsequently, the top Court dismissed review petitions filed against its decision.

The former Supreme Court judge began his address by recapitulating that when the Constitution came into force, social inequalities were of a different nature altogether. There were depressed classes of citizens, which the Constitution had to do something about to correct the social disorder.

He traced the trajectory of the reservation laws, from the T Devadasan judgment, to the Indra Sawhney judgement, to the Akhil Bharatiya Soshit Karamchari Sangh (Railway) judgment, and the 77th, 81st and 103rd Constitutional amendments.

Referring to Article 335 of the Constitution, Justice Nariman said that it provides for SC/ST claims on government, but they have to be consistent with efficiency in administration. As such, the criteria of merit comes in. Early judgments balanced rights under Articles 16(1) and (2) with the reservation policy under Article 16(4), he added.

Speaking of Devadasan's case (the carry forward of vacancies' case), Justice Nariman opined that Justice Subba Rao's was a lone voice in a wilderness, when he said that it was wrong to view Article 16(4) as an exception to the main principle [Article 16(1)].

Critiquing the Janhit Abhiyan judgment, Justice Nariman remarked that it is a case where both majority and minority were in error when it came to the concept of economic reservation. The judgment was in teeth of Articles 15(1), 16(1) and 46 of the Constitution, he asserted.

Further, in the context of Davinder Singh judgment, Justice Nariman complimented Justice BR Gavai's distinction of drawing up of a list of SCs (under Article 341) and actual reservation provisions [Articles 15(4) and 16(4)]. However, he lamented that the distinction was not taken to its logical conclusion, as the judge ultimately concurred with the opinion of then CJI DY Chandrachud which compromised with the efficiency facet contained in Article 335.

The video of the lecture can be watched here.