Across the aisle by P Chidambaram: Blessed are the poor (but not all) | The Financial Express
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Across the aisle by P Chidambaram: Blessed are the poor (but not all)

The outcome of the intersection of law and politics is the true measure of whether a country is governed by law or not.

Across the aisle by P Chidambaram: Blessed are the poor (but not all)
The lower courts, as well as the political/civil society outfits who champion Hindu fringe group causes, would do well to remember two things. (Photo: PTI)

The subject of this column is at the intersection of law, politics, concept of equality and the idea of social justice.

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I have a fairly well-formed position on what is social justice in contemporary India and the way forward. I also have a strong sense of how unequal Indian society is and the hundred things that we have to do to make Indian society more equal. At the intersection of social justice and equality, at times, social justice has suffered and, at other times, equality has been sacrificed.

Laws are made by the legislature which is an assembly, overwhelmingly, of politicians. Laws are administered and applied by judges who are removed from politics. Rulers must fear judges, judges must not fear the rulers. The outcome of the intersection of law and politics is the true measure of whether a country is governed by law or not.

At the intersection

The judgment of the Supreme Court in Janhit Abhiyan delivered on November 7, 2022 is a fine example of the dilemmas that are encountered at the intersection of law, politics, social justice and equality. The judgment was delivered in a batch of cases that challenged the validity of the 103rd Amendment to the Constitution, popularly called the ‘EWS reservation case’. EWS stands for Economically Weaker Sections. For this column, I prefer to call them ‘poor’.

Also Read: Over the top by Meraj Shah: Pilgrim’s progress

I have decided to hold back my view on the judgment and use this column to lay out the issues and request the reader to take a view.

The fundamental issues

There are many kinds of reservations today in educational institutions and government employment. These reservations are for the “socially and educationally backward classes” which mean the scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC). There are historical — and incontrovertible — reasons why these sections of the people are socially and educationally backward. Reservation was considered an instrument of ‘affirmative action’ and reservations for SC, ST and OBC have acquired legitimacy and approval.

These reservations are presumed to have caused ‘angst’ among sections of the people who do not enjoy any reservation, notably, citizens who are not SC, ST or OBC. The idea was born that the poor among these citizens suffer similar disadvantages in education and employment; so, can a new reservation be carved out for the poor? The idea was conceptually fair but there were obstacles:

  • Can the poor be considered “socially and educationally backward” which is the only category recognised by the Constitution of India for providing reservation?
  • Will reservation for the poor to advance economic justice violate the ‘basic structure’ of the Constitution?
  • Since, by judge-made law, all reservations together cannot exceed 50 per cent of the ‘seats’ or ‘jobs’, will not a new reservation of 10 per cent breach that ceiling?

The doctrine of ‘basic structure’ and the principle of a ‘50 per cent ceiling’ are traceable to judgments that interpreted the Constitution. Once the Honourable Judges decided to shed the inhibitions created by judge-made law, the path forward was clear. All five Honourable Judges agreed that economic justice is on the same plane as social justice and that a new reservation based on economic criteria would not violate the basic structure of the Constitution. They also agreed that exceeding the ceiling of 50 per cent in this case was not unconstitutional. They unanimously upheld reservation based on economic criteria and the quantum of 10 per cent. Criticism of this part of the judgment is muted. The issue that has divided opinion is whether the reservation can exclude the poor among the SC, ST and OBC?

The divided court

Poverty is the main cause of deficiencies in nutrition, nurturing and early learning. These deficiencies limit or deny access to education and employment. The question that arises is, Who are the poor? The 103rd Constitutional amendment had left it to the states to notify the poor based on “family income and other indicators of economic disadvantage”. The minority judgment cited the Sinho Commission (July 2010) which had concluded that 31.7 crore people were below the poverty line (BPL). Of these, the SC population was 7.74 crore, ST population was 4.25 crore and OBC population was 13.86 crore, totaling 25.85 crore or 81.5 per cent of the BPL population. These proportions among the BPL population could not have changed significantly since 2010.

The crucial question is, whether Article 15(6) and Article 16(6) that exclude the poor among the SC, ST and OBC from the new reservation are Constitutionally valid? On this issue, the Honourable Judges were divided 3:2. Mr Justice Ravindra Bhat wrote a powerful dissent in which Chief Justice Lalit concurred. His words, “Our Constitution does not speak the language of exclusion” will reverberate in the court halls of the Supreme Court for many years. In my view, the dissent is “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error” (per Chief Justice Charles Evans Hughes).

Reflect on these possible conclusions: To create a new reservation for the poor will advance economic justice. But to exclude the poor among the SC, ST and OBC (constituting approximately 81.5 per cent of the total poor) from the reservation will deny equality and justice to the poorest among the poor. 

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First published on: 13-11-2022 at 05:00 IST