Certainly, the government has amended the Constitution to negate various apex court judgements on quotas and has tried to hide certain laws on reservation from the Supreme Court’s (SC) scrutiny by classifying them under the Ninth Schedule.
With Maharashtra’s reservation quota rising to 65% after the Bombay High Court (BHC) upheld reservations for Marathas—possibly even 75%, once you add prime minister Narendra Modi’s 10% quota for economically weak sections (EWS)—it is easy to blame politicians for striking yet another blow against merit. If 65-75% of college admissions and government jobs—and, within this, promotions—are to be determined by quotas, apart from how this reduces the opportunity for general category students, how is India to compete in an artificial intelligence/machine-learning world where merit and knowledge are critical? But, why blame just politicians who, by their very nature, only look for immediate electoral gains. Certainly, the government has amended the Constitution to negate various apex court judgements on quotas and has tried to hide certain laws on reservation from the Supreme Court’s (SC) scrutiny by classifying them under the Ninth Schedule. But, in IR Coelho, in 2007, SC had ruled the Ninth Schedule was not sacrosanct if it violated Constitutional provisions on fundamental rights.
While the Maharashtra State Backward Class Commission said Marathas were socio-economically backward, a decade ago it had said they were both economically and politically—half the state’s MLAs and CMs have been Marathas—a forward caste, something even the Mandal Commission had said. It is surely odd that BHC didn’t deal with this. And since a nine-judge SC bench in Indra Sawhney had capped reservations at 50%, it is surprising SC didn’t object to the 10% EWS quota earlier this year; ditto for BHC in the Maratha case. While BHC said the Indra Sawhney cap could be violated in exceptional circumstances, where there was “quantifiable and contemporaneous data reflecting backwardness” and “inadequacy of representation”, it just needed to study the facts to know Marathas aren’t backward.
These aren’t stray instances either. In 1994, in Ajay Kumar Singh, SC ruled on reservations at higher levels of education, something which Indra Sawhney said was not to be allowed. So, SC said, “(In Indra Sawhney), the Court was speaking of posts in research and development organisations, in specialities and super-specialities in medicines, engineering and other such courses. The Court was not speaking of admission to specialities and super-specialities. Moreover, M.S. or M.D. are not super-specialities”! And in 1997, in Post-Graduate Institute of Medical Education and Research versus KL Narasimhan, SC said, “Securing marks is not the sure proof of higher proficiency, efficiency or excellence … In that behalf, it is common knowledge that marks would be secured in diverse modes … They are awarded in internal examination on the basis of caste, creed, colour, religion, etc.”!
Last month’s SC ruling on Karnataka’s law to allow reservation in promotions for SC/ST expanded on this contempt for marks as proof of merit. Ironically, in 2017, the same court had rejected the Karnataka law on grounds that no data had been given on inadequacy of representation of SC/ST in the civil service and its impact on administrative efficiency; this was mandated by the Nagaraj judgment of 2006. To get over the Nagaraj requirements, SC reinterpreted “efficiency of administration” to say it “must be defined in an inclusive sense, where diverse segments of society find representation … while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one-sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State”. The judges elaborated, “a ‘meritorious’ candidate is not merely one who is ‘talented’ or ‘successful’ but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration”. The Maratha law, and even Modi’s 10% EWS quota, will probably be challenged in SC, but given SC’s past rulings, getting justice isn’t going to be that easy.