Rahul Gaikwad: Sir, I would like to know, in the present context, the implications of 10% reservations that is being given to the upper castes and how this particular kind of reservation come about?
Dr. Mane: To understand the Reservation policy, one needs to have a comprehensive understanding. When I say comprehensive understanding, it means its sociological background, its compensatory jurisprudence, its legal framework, its evolution through court decisions, and finally, the politics of reservation policy. All these issues need to be understood in a proper perspective, and then we will be able to answer all these questions.
First and foremost, the Constitutional reservation policy is only for three classes: Scheduled Castes, Scheduled Tribes, and Backward Classes. Subsequently added classes, such as those in Maharashtra, are called the ‘vimukta jatis’ or nomadic tribes. But nowhere in the country, there is any reservation for any other class, group or caste or group of castes – that is very clear.
Now, the Scheduled Caste and Scheduled Tribe reservation is based on a compensatory package. Compensatory package means, it is the compensation from the Constitution and State for their historical, sociological, economic, cultural and other kinds of exploitation, persecution, discrimination, and all kinds of odds against them. So they have been compensated in the form of Constitutional reservation policy to enable themselves to advance in each and every walk of life. At least in education, government employment and politics, they have been provided with reservations of seats.
Now, coming to the recent change which is occurring in the whole package of Constitutional reservation policy, that is, large groups of people are demanding reservations, like Marathas in Maharashtra, Patels in Gujarat, Jats in Rajasthan, or Gujjars in Haryana. Whether they can be given reservations and under which category, that is the question being debated these days. In order to give reservations, the Constitutional parameter is social and educational backwardness, besides caste and untouchability. The economic parameter is nowhere mentioned in the entire text of the Constitution.
In this light, you have to understand the validity of 10% reservations given to the poor among the upper castes. First and foremost, the reservations granted to Jats in Rajasthan, Patels in Gujarat, Marathas in Maharashtra have been struck down by the respective High Courts in those states. On the same grounds – they are not in that category of backward classes, number one. Second, by giving them reservations, the reservations exceed 50%. The Supreme Court says in exceptional cases, you can exceed 50%, but these are not exceptional cases, and they failed to stand the test of the law, and have been nullified.
Recently, for 10% reservations, amendments have been made to the Articles 15 and 16 of the Constitution. For the question of whether they will sustain, the answer is no. Because the 50% ceiling is imposed by the Mandal judgment of 1992, which was delivered by 9 judges. Unless, to that effect, a constitutional amendment is passed, no reservation can exceed 50%. And while passing these recent amendments, there is no amendment to that effect, that is, for reservations exceeding 50%. For that area, as it is, Mandal judgment stands, this will not stand.
Secondly, such an amendment is ultra vires the Basic Structure of the Constitution. The Basic Structure of the Constitution includes reservation for the minority, not for the majority. That was the view of the framers of the Constitution, including Babasaheb Ambedkar. And therefore, giving reservation for 60%, 70%, 75%, is against the spirit of the Constitution, barring states like Tamil Nadu, where it is an exception. The Tamil Nadu model cannot be applied to other states. And even Tamil Nadu reservations, which exceeded 50%, is subject to judicial review, is pending before the Supreme Court. And therefore, this 10% reservation is also against the Basic Structure of the Constitution.
Rahul: One question that comes to mind, whether the 50% cap is itself constitutional?
Dr. Mane: The 50% cap is laid down by the judgment of the Supreme Court, it is not laid down in the Constitution. But, while interpreting the Constitution, we have adopted a classification, of minority-majority consensus, and reservation limited to a few groups, not all groups. So within this framework of the Supreme Court’s laws, this new 10% cannot be done, as a result of Mandal cap. Now, Parliament has to remove the cap.
Rahul: Was this cap a recommendation of Mandal?
Dr. Mane: No, it was a Supreme Court judgment. If the Parliament wants to exceed the cap, it has to first remove it, it has to pass separate legislation. Secondly, can you give reservations on economic criteria? Again, Mandal says: No. Not only Mandal, after Mandal, but all judgments delivered by the Supreme Court have also refused to recognize reservations on the basis of economic criteria. And poverty is an economic criterion. It is not a social criterion. It is not a backwardness criterion. The government has a limit of 8 lakhs, which means more than Rs. 66,000 a month. If that is the definition of the poor man in India, then India is one of the rich countries in the world. That is again a big mistake by the Central Government, which will not stand.
Rahul: Coming back to the 10% reservation, is it going to affect the interests of SC/ST/OBC people?
Dr. Mane: In what way? While keeping intact the SC/ST reservation, if the government decides to give 10% to weaker sections of upper-castes, directly there will not be an impact, but indirectly, it will have an impact, it will be a big disaster. Once in the garb of reservation to poor among upper-castes, the criteria of economic backwardness is introduced, in future, this criteria may be advocated for SCs and STs. That is the biggest danger. That danger, Mayawati cannot understand, Ram Vilas Paswan cannot understand, and you need not talk about Ramdas Athavale, he cannot understand. There are several of our leaders, intellectuals, and people who cannot understand that when they support reservations to other classes on economic grounds, they are inviting the counter-revolution in the future.
Rahul: Absolutely. I think that about sums up, Sir. Thank you very much.
Dr. Suresh Mane is a political and social activist associated with the Bahujan movement founded by Manyawar Kanshi Ram.
He has a PhD in Law with specialization in Constitutional Law, Administrative law and Criminal Law from the University of Mumbai, and has worked as a professor in the university for a long time, and has also mentored many research students. Dr. Mane now leads the Bahujan Republican Socialist party.
Rahul Gaikwad is a researcher based in Mumbai.
The interview was transcribed by Sundeep Pattem.