Reservations and the Ninth Schedule: Lies and facts

The Red Queen broke the silence by saying to the White Queen, `I invite you to Alice’s dinner-party this afternoon.’
The White Queen smiled feebly, and said `And I invite you.’
`I didn’t know I was to have a party at all,’ said Alice; `but if there is to be one, I think I ought to invite the guests.’
`We gave you the opportunity of doing it,’ the Red Queen remarked.

                                                                                                      ---Through The Looking Glass 

Political parties including the Dravid Munnetra Kazhagam (DMK) had recently approached the Supreme Court of India regarding the application of 50% reservation for the Other Backward Classes (OBC) Quota to the State surrendered seats in medical undergraduate and postgraduate courses through the All India Quota. They had filed petitions under Article 32 of the Constitution of India. At the hearing the Court queried as to what fundamental right was breached in the acts forming the basis for filing of the petitions. Stating that a petition under Article 32 lies only against breaches of fundamental rights, the Court pointed out that reservation is not a fundamental right. That being so, the omission to reserve 50% in the AIQ seats for medical courses cannot be challenged directly in the Supreme Court. The petitions were disposed of with liberty to file appropriate matter in the High Court.

Reservation lies solely within the discretion of the State. If the State does not extend benefit of reservation, the matter cannot be agitated in Constitutional Courts, because reservation is not a fundamental right. The speaking order in the matter does not mention all of this, but the reporting of the news carried this bit, and the fact of the Supreme Court so observing was spread far and wide.

In February 2020, in the matter of Mukesh Kumar vs. State of Uttarakhand, the Supreme Court had declared in no uncertain terms that a policy of not extending reservation in a particular matter cannot be challenged in Courts. In the din of other newsworthy bits of information, this epoch making judgment was relegated to single column reports in newspapers. There was no noteworthy analysis of the news in the mainstream media. 

About the judgment in which the Supreme Court ruled that reservation is not a fundamental right. 

This fantastic bit of news for the open category was not widely noticed or commented upon, but the newspapers did report it. Promptly, the proponents of reservation fired salvoes of their own.  Noises, appropriate or otherwise were made. The causes for reservation and the justification for the same were reiterated. There is reason for taking note of these events now. The happenings in the Supreme Court regarding Tamilnadu pleas for reservation, and the dry opinion expressed by the Court during hearing prompted many reactions. Ramvilas Paswan, a big proponent of reservation and a longtime Minister in various governments, peremptorily called for action. “All political parties should come together to amend the Constitution to shield all reservation laws from judicial review,” he’s reported to have said. His demand to put all the reservation laws in the Ninth Schedule of the Constitution were of a piece with the earlier statement of his son, Chirag Paswan, himself a Member of Parliament and President of the Lok Janashakti Party; a constituent of the ruling National Democratic Alliance (NDA) dispensation.

Ramvilas Paswan, however, carried it further. He demanded that reservation be included in the fundamental rights. Most importantly, he lied about the antiquity of reservation, invoking Gandhi along with Ambedkar to (falsely) add antiquity and historicity to the idea of reservation. “Reservation is the result of the Poona Pact between Babasaheb Ambedkar and Mahatma Gandhi. If anyone raises ifs or buts about it now, they will be negating the Poona Pact,” The Hindu reports him as saying.  

A responsible and powerful leader, and a long standing Member of Parliament making this statement is not a coincidence or a spontaneous reaction to the event of the day.  These sort of statements, particularly to the media, are deliberately made as an agenda. A part of this agenda is false propaganda. Any event going against some idea, attitude or government policy is deliberately played up. The dual intention behind this propaganda is to confuse opponents of the idea and to encourage adherents and proponents of the policy.

Paswan’s statement has caused a stir amongst the open category. Messages are doing rounds of social media. The helplessness of the open category burdened by the ever increasing quota of reservation manifests itself in anger about the government. The goals of Paswan and his ilk are achieved merely by this. Yet, the more lasting effect will be that the enjoyment of the real news is denied to the open category. The very motive might well be to deprive a conversation about the fact that according to the Supreme Court, reservation is not a fundamental right. This article is an attempt to throw light on historical facts and principles of law applicable.

As held by the Supreme Court recently, in a reasoned judgment in Mukesh Kumar vs. The State of Uttarakhand, reservation is not a fundamental right. The idea of reservation in education and employment did not find place in the Constitution. It was later inserted as an exception to the fundamental right of equality, dubbed the first principle of the Constitution by Dr. Ambedkar. In reaction to this, Chirag Paswan had made the same noises as Ramvilas Paswan is making now.

Reservation is the biggest fraud played upon the Constitution.  

The Ninth Schedule was inserted by the First Amendment to the Constitution. It named certain laws which would be beyond the purview of judicial review for violating fundamental rights. The contemporary reasons for the insertion of the Ninth Schedule are not germane to the issue at hand. Yet, the Ninth Schedule assumes significance because it is widely (yet wrongly) believed that 69% reservation is prevalent in Tamilnadu only because the law regarding the same is inserted in the Ninth Schedule, and that it cannot be challenged.

In fact, the cap of 50% reservation was imposed by the judgment in Indra Sawhney only in 1992. The 69% reservation in Tamilnadu was in effect and implementation much prior to the said decision of the Supreme Court in the matter also known as the Mandal Commission case. Tamilnadu was forced to enter the law regarding reservation in the Ninth Schedule only to continue the existing arrangements. Even then, the matter of reservations in Tamilnadu exceeding 50% is subjudice before the Supreme Court.  

In the meanwhile, the Supreme Court has ruled that the insertion of an Act in the Ninth Schedule would not preclude it from judicial scrutiny. It is therefore no longer sufficient that a law be added to the Ninth Schedule to take it beyond judicial reach. The idea of the Paswan duo has another hurdle to cross. The discretion o extend reservation is within the discretion of the States and there are different laws for different states with different provisions regarding reservation. The vast size of the country and the diverse conditions prevalent in various parts means that the evolving conditions have made it necessary that there be laws, rules, and other species of policies having force of law in various states.

As for Maharashtra, the Maratha reservation was introduced by a separate law, known as the SEBC Act in short. The Economically Weaker Section (EWS) category of reservation, inserted by a Constitutional Amendment was extended by a notification. The validity of the Maratha reservation, taking the total beyond the 50% limit set in Indra Sawhney is subjudice and the result is awaited soon.

The Supreme Court and Maratha Reservation 

Secondly, changing fundamental rights or adding to them is a complicated process. Paswan is too big a leader not to know this. It is hence necessary that his fulminations are debunked. As to the Poona Pact, reservation in education and employment was not a consideration at the time when it was signed by and between Dr. Ambedkar, Madanmohan Malaviya, C. Rajagopalachari. The Pact was to the effect that 148 seats in the Provincial Assembly were to be reserved for the depressed classes. It was signed in 1932, whereas the reservation in education and employment were provided much later than the adoption of the Constitution of India in 1950. The Poona Pact has nothing to do with the topic at hand.

It has been held by the Supreme Court in many matters that reservation is not a fundamental right. By asking the political parties who had filed petitions to approach the High Court, the Supreme Court of India has clarified the scope and limitations of its powers regarding reservation.

Proponents of reservation will try deliberately steer away conversation from this important topic.  It is imperative for them to contrast the fallout of the judgment, and they will do so by making pointless and false allegations and state patent lies. The desperate act of somehow associating Gandhi with reservation is one such ploy. All that the open category people and opponents of caste based reservation can do is to understand the issues and to make others aware of the same. Informed action to eradicate the evils of caste based reservations is the need of the hour. Understanding the importance of events is the key to it.

© Adv. Shrirang Choudhary