Thursday, November 06, 2008

Rationale of reservations in local bodies

The hearing of Dr.K.Krishna Murthy vs. Union of India by the five-Judge Constitution Bench continued for the third day today. Rama Jois and Salman Khursheed argued for the petitioners while ASG, Gopal Subramanium argued for the respondent.
The validity of Article 243D providing for reservation of seats in the Panchayats and in the offices of the Chairpersons in the Panchayats and the corresponding 243T for Municipalities has been challenged in this case. Both these Articles were inserted by the 73rd and 74th Constitution amendments as part of the newly-created Part IX of the Constitution in 1992.

Rama Jois was not against the reservation for SCs and STs, as similar reservation existed for these classes in Parliament and state assemblies. When he tried to tell the Bench that the total quota came to 77 per cent, and therefore invited the Court's bar on more than 50 per cent quota, Justice Raveendran and the CJ sought to question his calculation. It appeared as though Rama Jois did not consider that the different categories might be overlapping. That is, he seemed to consider all horizontal reservations as vertical. Thus, reservations for women is within the SC/ST quota, but he seemed to ignore this. Realising the flaw, Rama Jois told the Bench that he was not pursuing this challenge, but reservation for the OBCs per se is bad.

He argued that Mandal Commission did not recommend reservations in local bodies, and that if the OBCs and women did not require reservation for nearly four decades since independence, there was no basis for these amendments. There was no reservation before the Constitution came into force for these sections; so are we worse now, he asked. He underlined that no Commission had recommended quota for OBCs and women in local bodies.

Jois said a single post cannot be reserved, but several posts can be clubbed together. Reservation for the posts of Chairmen, therefore, violated this principle. He argued that while original provisions like Article 330 and 332 cannot be questioned, amendments can be challenged.

Jois' challenge to reservation for women failed to impress the Bench. He said women have no aptitude for politics, and that 33% of seats were reserved, 33% men would go out of circulation, and this posed a danger. When Justice Jain asked him what his formula was for the Lok Sabha and state assemblies, he said Lok Sabha seats could be increased by 10 per cent (54 seats). If a party gets 200 seats, that party would be entitled to get 20 of these 54 women seats, and the party could nominate women MPs for these extra seats. That way, existing male MPs would not lose their seats, he suggested. In the elections to local bodies, he pointed out that women candidates faced male candidates, and the purpose of reservation was defeated.

Gopal Subramanium traced the history of Panchayat Raj, beginning with the desire for self-government during the freedom struggle. Explaining the rationale of Part IX of the Constitution, he said caste can be a class where backwardness is manifest. "Backwardness is not an amorphous expression; 17 States have made reservations for BCs under Article 243D (6)," he said. He complimented the 73rd and 74th amendments as having brought about a silent revolution in Indian society. It is thanks to these amendments, marginalised people now have a share in development, he said and added it has not been without resistance.

Justice Raveendran reminded him that the petitioners' objection was about vertical reservation, and that Women's reservation was a fringe issue. Thrust of Rama Jois' argument was against reservation for BCs and for the Chairpersons. He also asked if BCs had already a major share of seats/posts in the local bodies, what is the purpose of quota for OBCs. He explained the petitioners' argument thus: the OBC quota was not required, whereas the quota for SC/STs and women were required because these sections were poorly represented in the local bodies.

At this point, Rajeev Dhavan told the Bench that the question of reservation did not arise because the OBCs did not suffer the 3 Ds (Discrimination, disadvantage and disempowerment), and therefore, the Bench must examine whether Article 243D(6) could be severed from Part IX, because this provision gave discretionary power to the State Governments to reserve seats and offices of Chairpersons in the Panchayats for BCs.

Gopal Subramanium said there was no averment that the backward classes did not exist when these amendments were passed. He responded to Jois' comment that it would lead to a clamour for similar quota for OBCs in Lok Sabha and assemblies (Jois said the A.P.Assembly had already passed a resolution seeking OBC quota in assembly), saying we would cross the bridge when it comes.

Justice Raveendran said nobody argued against PR system, and the argument of the petitioner, was that if empirical data was available for SC/ST/women, no such data was available for OBCs. "We don't want to enter areas where there is no contest at all", he said. He reminded the ASG that the Mandal Commission had found that in the political arena, the OBCs did not require reservation.

When ASG repeatedly equated castes with classes, Justice Raveendran asked whether it was his contention that creamy layer must be removed for OBC quota under local bodies too, as only then these castes could be considered as backward classes. To this, the ASG replied that the fact that the BCs exist is itself a justification for reservation. Justice Raveendran asked a pointed question whether before this amendment, the BCs were prevented from contesting in Panchayat elections. He said similar justification was available for women, SCs and STs because they were dissuaded from contesting.

The ASG replied that the right to contest/vote is a creation of the statute, and could be tailored, based on qualifications.

Justice Raveendran said: Where Reservation is needed and provided, it leads to equality; where reservation is not needed, but provided, it becomes a divisive force. To this, the ASG replied that affirmative action in education and employment is not exhaustive of equality. When ASG criticised Jois for saying that the State cannot do more than affirmative action in education and employment, Justice Raveendran replied that Jois did not say the state cannot, but it was not required.

The ASG replied that BCs need integration with active State's intervention. The goal of Part IX, Article 15(4), 16(4), Article 243D(6) is the same, that is, safeguard the interests of the BCs. Therefore, Part IX is consistent with Article 14; it actually promotes Article 14. As long as people exist, requiring protection under Article 14, it is self-evident basis for classification. As political equality is essential for living condition, and dignity of people, reservation for them is justified. Part IX of the Constitution aims at equality of status, not equality of opportunity. The word status is not defined in the Constitution. A caste, when it is subjected to disabilities of a social class, it becomes a class.
(To be continued on Tuesday, November 11)
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