Affirmative Activism

HarperCollins

Pages: 506

Price: Rs 499

Arun Shourie’s Falling Over Backwards: An essay against reservations and against judicial populism,now in a new edition,is an outstanding analysis of reservations in education and employment and some lamentable decisions of the Supreme Court.

After Independence,every political party,for reasons of political expediency,has done exactly what the Constitution did not want them to do. Every sensible check in the Constitution has been done away with and every sensible judgment overruled by a constitutional amendment. Not surprisingly,each amendment was passed with almost no opposition. The dream of the founding fathers of a casteless society has been turned into a nightmare of a caste-ridden society. And our politicians will not rest content till they further divide the already divided nation along religious lines as well.

Over the years,reservations up to 50 per cent have come to stay —15 per cent for Scheduled Castes,7.5 per cent for Scheduled Tribes and 27 per cent for Other Backward Classes. In Tamil Nadu,the reservation is as high as 69 per cent. In no other country is affirmative action practised on such a massive scale.

These percentages can be justified if the beneficiaries have been identified on a scientific basis. Shourie exposes the arbitrary manner in which the Mandal Commission identified “Other Backward Classes”. The real tragedy is not that the Mandal report is flawed,but that the Supreme Court,by a majority,upheld it,despite noticing its glaring mistakes. The minority judgments rightly point out three things: no survey was done to find out whether the 3,743 castes,identified as backward,had adequate representation in the services; only 0.06 per cent of the villages were surveyed; and only 406 of 3,743 castes were subjected to any kind of socio-educational field survey.

The great jurist H.M. Seervai regretted the steep fall in the quality of judgments involving constitutional law and remarked that the judgments of the six majority judges in the Mandal case had reached “rock bottom”. But the Mandal verdict had its silver lining: it held that reservations could not be extended to promotions,that unfilled reserved posts could not be carried forward beyond 50 per cent,and that a ceiling of 50 per cent must be imposed for reservation. These simple safeguards were also sacrificed at the altar of populism by further constitutional amendments. Once again,what was even more tragic was that these amended provisions were held to be constitutionally valid by the Supreme Court. One wonders what Seervai would have said about the later judgments.

Shourie’s scholarly examination of several decisions of the Supreme Court will be the envy of any jurist. In case after case,he points out untenable observations made by judges of the highest court that would embarrass even a politician. His logic is faultless and he clearly demonstrates that the Supreme Court,has,regrettably allowed dilution of constitutional safeguards.

Most citizens are unaware of the fact that reservations can,and do,actually cross the 50 per cent limit. If a Scheduled Caste or a Backward Class candidate succeeds on merit,he can claim the job or college seat in the open category. Consequently,one extra seat gets allotted to the reserved category. Suppose there are 100 seats in a college with 51 seats in the open category and 49 seats in the reserved category. If 15 candidates from the reserved category get admission in the open category because their marks are above the prescribed cut-off limit,then the seats for the forward category get reduced by 15. The reserved category candidates will then get 64 seats. Shourie points out the devastating consequences of our reservation policies. In Kerala,20,000 candidates applied for 700 medical seats. To gain admission,the forward class candidate had to get a minimum rank of 412,whereas a Latin Catholic backward class candidate got in with a rank of 2,653 and a Scheduled Tribe qualified with a rank of 14,246. In the services,the statistics are equally shocking. For example,in Karnataka,in certain government departments,80 per cent of the chief engineers are from SCs and STs. Of the reserved category and general category engineers who joined in 1982,the former became assistant engineers in 1991,while the latter did not reach that grade till 2012.

The Supreme Court required candidates from the “creamy layer” to be excluded from reservation. Thus,children of wealthy parents,albeit belonging to a backward class,should not be given the benefit of reservation. Shourie once again shows how several states have made a mockery of even this salutary safeguard.

The last chapter titled “Epilogue or suicide by a thousand cuts” is particularly engrossing. Shourie has examined recent high court and Supreme Court decisions on reservations for religious minorities,on the upholding of three constitutional amendments and the appalling verdict in the Indian Medical Association case where a bench of two judges simply ignored the judgments of benches of five,seven and eleven judges.

On June 27,1961,Pandit Jawaharlal Nehru expressed dismay at the manner in which reservations were being made. Writing to chief ministers,he warned that India would become second- or third-rate if reservations were made on communal considerations. Nehru was also shocked to note that promotions were also made on caste considerations and warned: “This way lies not only folly but disaster.”

It is a pity that every political party seems determined to drive this country in reverse gear. With elections due in 2014,the demand for reservations along religious lines and in the private sector will be made again. Shourie’s masterpiece courageously exposes the ugly truth about reservations. No one denies the need for affirmative action. Poverty is a crippling handicap and the law has to step in to create a level-playing field. But there is absolutely no justification for reservations that are exclusively based on caste. What hope can a country have whose leaders knowingly,wilfully and deliberately choose the path of folly and disaster.

Arvind Datar is a senior advocate,Madras high court