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April - May 2007


Political News

Reservations Vis-a-Vis Equality Before Law

by Krishan Tyagi


Most of the people against Reservations in Jobs and Educational Institutions in India have been putting emphasis on merit, and the Indian government, trying to camouflage the issue, has been talking about increasing the seats in various educational institutions.  

  However, the issue is not how many seats different educational/vocational institutions have got at present or are going to have in the coming years.  Nor is the issue how many vacancies are going to arise in different government (or private) undertakings this year or in the coming years. These are not basic issues. The main issue is also not that merit would be compromised by the reservation system. Of course, merit would be compromised – it is a natural corollary of a job-reservation system. However, the pro-reservationists have a point in saying that merit is culturally and historically determined.

The real issue is that, as per the Constitution of India, we are all citizens of India - we are not supposed to be citizens of a province, a religious community or a caste community. The State is expected to treat all its citizens equally – irrespective of caste, creed, race, sex, colour or religion.  State- sponsored caste-based reservation or quota system is a violation of the fundamental right of “the equality before law” guaranteed by the Indian constitution to all its citizens. Reservation in jobs is an exception to the rule of equality before law (which implies equality in employment).  However, given the history of India, the provision of job reservations for the Scheduled Castes and Tribes was adopted only as a temporary measure for the first ten years. Now, rather than getting rid of the exceptional temporary measure infringing the fundamental right of equality before law enshrined in the Constitution of India for all its citizens, the State discriminating against a person on the basis of their “caste”, is scandalous and unconstitutional.  Not only it’s a betrayal of an ordinary citizen’s rights, it is an attack on the very foundations of the Republic of India.  If the State denies me a job or a seat in an educational institution in favour of someone whose performance in the given test/exam is not as good, saying that I “belong” to such and such caste, it is a negation of my citizenship of India.

The government is justifying the caste-based reservations by saying that caste is a reality. But, if “caste” is a reality, so is religion, so is province (states), and so is language.  If some “castes” are under-represented in government jobs, professions or management cadres, so are some of the states.  For instance, Madhya Pradesh, Gujarat and Maharashtra have always been under-represented in the central government jobs, while Bengalis and Tamils have traditionally dominated the higher civil services. So, the UPA government and its allies (and other opportunistic leaders of the country) need to be asked whether, after making reservations on the caste basis, the government is also going to make State-wise reservations in the Central government jobs.   If not, why not?  If the disproportionately over-representation of the so-called upper castes in government jobs & professions needs to be balanced, then why shouldn’t the disproportionately over-representation of some states be balanced? States, particularly representing cultural and linguistic units, are as much a reality as castes.  Why shouldn’t the reservation be based on the basis of States then?  After all, India is a ‘Union of States’!

Another question that needs to be asked is that while it is true that in the Indian caste-system, the Scheduled Castes suffered persecution and repression, who has repressed the so-called OBCs? If we look at Yadavs and Jats in the northern India, not only they dominate in every sphere of life – right from agriculture to business, to literature, and to politics, they are UPPER CASTE people (they are classified as Kshtriyas). More or less the same is true of the so-called OBCs in other parts of the country – whether they are Lingayats in Karnataka or Reddys and Kamas in Andhra Pradesh or Chettiyars in Tamil Nadu. They are quite wealthy communities with big political lobbies. Unlike the Scheduled Castes, these UPPER CASTE people, calling themselves OBCs, have not suffered any social impediment. No one has repressed them. In fact, they themselves have been active participants in repressing the Scheduled Castes. On what basis are they asking for a preferential treatment? The irony is that while the Left called the former Prime Minister Chaudhari Charan Singh a Kulak (big landlord), now they have supported a legislation that declares Chaudhari Charan Singh’s Illinois (US) educated son a backward!

In this context, it has to be said that the role played by the Supreme Court (actually by a few judges acting in the name of the Supreme Court) has also to be blamed for the mess we are in today. And their earlier judgements on the issue do need to be challenged. As pointed out above, the forefathers of India enshrined the principle of equality before law as the fundamental right for the citizens of the country. Reservation in the jobs was only going to be an exception to the rule. However, when the issue came up before the Supreme Court, it set the limit of reservations at 50 per cent, saying that since the reservation is only an exception, it cannot be bigger than the rule, which is equality. Thus for the principle of equality to stay as the rule, it has to be applied to at least half of the seats, ie, 50%, and, therefore, the principle of reservation cannot be more than 50%. Now the question needs to asked, how can the principle of equality be called the rule and the principle of reservation an exception when both methods are applied in equal measures? The Supreme Court judges were wrong. To stay as an exception, reservation should have been applied to only one in one-hundred jobs, two in one-hundred jobs, or some such figure. When something happens more than five times out of one hundred, it is statistically significant, and if it is statistically significant, it is no longer an exception. Of course, at the moment, reservation in jobs is as much a rule as the principle of equality. SO THE SUPREME COURT NEEDS TO REVIEW (AND REVISE) ITS DEFINITION OF “EXCEPTION”.

  One thing everyone needs to be clear about is that ‘Equality’ is ‘Social Justice’, and ‘Social Justice’ is ‘Equality’.  Demanding ‘Social Justice’ and denying ‘Equality’ is self-contradictory in terms.  It is not only logically untenable, it is a dangerous demand. There would be no end to the claims of social injustices. For instance, the Jats who claimed to be Chaudharis and the Gujjars who claimed to be Veer Gurjars so far are claiming to be backward castes now. Abandoning common citizenship and legalising tribalism would only lead to further divisions and racial conflicts that we quite often witness in African countries with great bewilderment and pain. In modern times, what’s the difference between Tutsis and Hutus! We often think. And, in modern India, what’s the difference between Jats and Rajputs! The world wonders.

It has to be said that there has been racial and social discrimination in every part of the world. But no other democratic country worth its name, including the US and UK, has gone for the job-reservation system invented by the Indian politicians.

What the country needs is to fight the caste-system and religious orthodoxies. Compounding ‘the inequities of the caste system’ with ‘the State-sponsored inequalities’ will only lead to multiple layers of injustices – not to a socially just order and equal society!  

If we are dividing jobs on the basis of “castes” today “to correct the social wrongs of the past”, tomorrow it will be the turn of sub-castes, linguistic groups and “religions”! Actually, the prime minister is already talking about reservations on the basis of religion, particularly for the Muslims. Now, if jobs and seats in educational institutions are allocated on the basis of “castes and religions”, it can be legitimately asked as to why parliamentary seats and ministerial posts not be allocated on the basis of castes and religions! The present Indian politicians are leading the country sleep walk into adopting the 1932 Communal Award – actually in a much worse form! It’s the natural, logical conclusion of the scheme of things on the Indian government’s agenda. (In fact, a senior politician in UP belonging to the “socialist and secular” party of Mulayam Singh Yadav has already made such demands in the past.)

Our learned prime minister has forgotten that the British rulers pronounced the Communal Award in August 1932 – giving similar justifications – and within fifteen years India laid partitioned! And, Madame Sonia Gandhi’s Indian National Congress has also forgotten that, foreseeing its results on India, Mahatma Gandhi opposed the Communal Award and fasted in protest!

Since the present Indian political leadership is also refusing to learn from other civilised democracies as to how to deal with past social injustices, and is hell-bent to “mirror the society”, the experience of Somalia is very pertinent. The country’s newly empowered transitional government is using mathematical formula based on rough estimates of population to allocate parliamentary seats and ministerial posts on clan basis. As reported in the New York Times on 22nd January 2007, this is the 14th attempt since 1991 to form clan-based government – all of them disappeared into the vortex of clan conflicts, strife and violence! Clan animosities destroyed the country’s last government in 1991, and clan warfare consumed countless lives and reduced once-beautiful capital of Mogadishu into a pile of bullet-pocked bricks! There is no definitive clan chart, and many of the main clans are divided into dizzying number of sub-clans, and even sub-sub-clans – quite similar to the Indian caste-system where there are more than three thousand castes, sub-castes, and sub-sub-castes! Indian politicians are playing a very dangerous game.

By abandoning common citizenship and the rule of equality before law for all its citizens, our short-sighted leaders have sown the seeds of India’s self-destruction! Today we are dividing jobs on the basis of “castes and religions”; tomorrow we would be dividing the land called India itself on those bases! The forefathers of India must be turning in their graves!

e-mail: krishantyagi@aol.com

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