In reservation law, Modi masterstroke that hits opposition where it hurts

Just as one thought that the Modi government was looking under stress of the December losses in Hindi heartland, comes the possible game-changing decision of introducing an additional 10% reservation quota for the economically weaker sections (EWS) of the general category. In one stroke, the Modi government has taken the wind out of the Maratha, Jat, Gujjar, Patel, Lingayat agitations that have rocked the country off and on at a great social cost. The government is set to introduce a Constitutional Amendment Bill to implement its decision on the last day of winter session of parliament Tuesday.

On the political front, Narendra Modi has shot many birds with one arrow. Catching opposition off guard is only one of them. Reservations based on economic criteria rather than caste has been a long-held position of the Rashtriya Swayamsevak Sangh (RSS). The saffron brotherhood believes that caste-based reservations introduced by the Nehru government in 1951 caused a death blow to the project of unifying Hindu community by entrenching the caste-divide. The decision thus earns crucial brownie points with Nagpur. Third, the decision is religion-neutral and would apply to all communities, thus making it difficult for the likes of Asaduddin Owaisi to use it to polarise his vote bank. All reservations going to Hindu community was one strong argument in support for similar provisions for the Muslim community. That stands partly demolished now. Lastly, I sense this is the beginning of a long list of announcements that would come from the Modi government as a build up to the general election.

If catching your opposition unawares is half the battle won, then the Modi government achieved more than its half. For, it not only caught the opposition off guard, the decision it transpires finds mention as an election promise in Congress manifestos of 2009 and 2014! Little better was expected from the principal opposition party, given it directly benefited from upper caste mobilization in Madhya Pradesh over the issue of amendments to the scheduled castes atrocities act. Senior Congress leader and party’s legal light Abhishek Manu Singhvi on the legality, maintaining that the Modi government’s decision would not stand the scrutiny of law.

In his support, he mentioned the 50% cap on reservations imposed by the Supreme Court (SC) in the 1992 Indra Sawhney judgment, upheld subsequently in various cases. While Singhvi might have chosen his words more carefully had he been fully aware of his party’s position, the Indra Sawhney case does provide a challenge to the BJP government that would need close legal handholding.

As recently as 2016 a similar decision by the BJP-led Gujarat government to shoe-in 10% reservations for EWS had failed to pass legal scrutiny with Gujarat High Court quashing the State’s law. In the Gujarat case, as also in other cases on reservations, the nation’s courts have been guided by the Indra Sawhney straitjacket, preferring caution over any experimentation. So for example in the 2015 Ram Singh vs. Union of India case, the SC observed that “time had come to review the Indra Sawhney case…for adopting new practices and methods to move away from caste centric definition of backward classes…deciding criteria should be a matter of continuous evolution.” While the Court stopped short of doing so, leaving it as a thought, the Modi government move provides a big opportunity for a legislative route to review of the 1992 position.

It seems the impediment is the absence of economic condition as a criterion for reservations under Articles 15 (4) and 16 (4) of the Constitution. The fact that the two belong to the fundamental rights part of the Constitution has lent that extra caution when the courts have dealt with the whole issue of reservations. While the details of the Bill would become public on its introduction in parliament, if the government brings an amendment to these provisions and succeeds in making it a law, then the SC would have to interpret the issue in the light of those changes. And why not? Article 15(4) itself is a product of first Constitutional amendment in 1951 that was introduced to overturn an SC verdict in the State of Madras vs. Chamapakam Dorairanjan case. After all, while it is the apex court that determines what constitutes law of the land, the law itself is framed in the parliament.