Falling over Backwards – An essay on
Reservations and Judicial Populism
By Arun Shourie
Rupa & Co, First published in 2006
No praise is adequate for the courage with
which Arun shourie has focussed on a problem which has bedevilled the nation
for so long. Reservation for members of
social groups in government jobs, admission to educational institutions,
especially of higher learning on the strength of belonging to particular castes
has been source of rich debate and controversy.
The baneful effects of reservation on efficiency of public
administration has long been denounced by many, including Arun Shourie himself,
but the strength of this book lies not so much in dealing with the cynical
fashion with which politicians have made use of the tool of reservation for
creating a client base to enhance their electability to Parliament and
Assemblies, but how the Judges of High Courts and the Supreme Court have often come
to the rescue of these advocates of reservation.
The book starts with a letter dated 27th
June, 1961 written by Jawaharlal Nehru to the Chief Ministers of States, which
contains this sage advice: “The only way
to help a backward group is to give opportunities of good education. This includes technical education which is
becoming more and more important. Everything
else is provision of some kind of crutches which do not add to the strength or
health of the body.” The letter also
contains a prophetic warning, “If we go in for reservation on communal and
caste basis, we may swamp the bright and able people and remain seconds-rate or
third-rate. I am grieved to learn how
far this business of reservations has gone based on communal
considerations. It has amazed me to
learn that even promotions are based sometimes on communal or caste
considerations. This way lies not only
folly but disaster.” Fifty One years
later, the issue of promotions for SC and ST is on the front-burner and giving
sleepless nights to the “Managers” of the governing UPA coalition in balancing
the interests of BSP and SP.
There is yet another dimension to the
reservation syndrome, which many may not have noticed. Again it was Pandit Nehru, who had focussed
on it when he stated in the Constituent Assembly while discussing the issue of
reservation in government jobs for Scheduled Castes, “Such devices in fact end
up harming the section they are intended to benefit – the section gets isolated
from the general populace; the natural empathy that the society as a whole
should have for that section gets eroded.”
Warnings apart, what happened to the
constitutional provisions are a study in itself, of how amendments have been
made to the Constitution to override, if not nullify, pronouncements of the
Courts upholding ‘equality provisions.’ As Arun Shourie tells us that in 1951 when the Supreme Court in the State of Madras Vs Smt
Champakam Durairajan case rejected the argument of the Madras government and
insisted that directive principles cannot override fundamental rights, it led
the first constitutional amendment with an additional clause added to Article
15 (4), providing: “Nothing in this article or in clause (2) of article 29
shall prevent the State from making any special provision for the advancement
of any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.”
The Indira Sawhney judgment led to placing the Tamil Nadu Backward
Classes, SCs and STs (Reservation of Seats in Educational Institutions and of
Government Posts in Services under the State) Bill 1993 in the Ninth Schedule
which could not be challenged in Courts. This happened in July, 1994.
The Constitution was also amended for the 77th
time in May, 1995, when the Supreme
Court held that reservation could be made only at the entry level to a service
and set apart promotions on the basis of caste, introducing a new clause (4A)
to Article 16 which provided: “Nothing
in this article shall prevent the State from making any provision for
reservation in matters of promotion to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and the Scheduled
Tribes which, in the opinion of the State, are not adequately represented in
the services under the State.” Arun
Shourie is at his diligent best while enumerating how amendment after amendment
– 81st, 82nd, 85th and 93rd –
followed after each Supreme Court pronouncement on reservation in Government
posts. As pointed out above, the pattern continues
with the latest attempt at amendment to pacify BSP, again after a SC verdict!
Arun Shourie also touches the holy cow of the Indian
Constitutional System, the Judiciary. He
narrates how the Judiciary helped the State to move on this path. Judicial pronouncements, ironically enough, helped the executive as the SC
stretched the scope of reservation further, even beyond what the government would have
hoped or desired. He shows how judiciary
by its enthusiasm for creative interpretation of the Constitution, justified
the ‘elasticity of the principles of reservation.’ One example of such an
interpretation – marked by much verbosity and therefore, very hilarious - would
suffice. This was Justices Krishna Iyer and Chinnappa Reddy pronouncing in the
case involving Railways which decreed reservation both at the entry level as
well as promotions and provided for more than 50% reservation. The learned Justices enunciated the
‘principles of elasticity” and argued thus:
“We, as Judges dealing with a socially charged issue of constitutional
law, must never forget that the Indian Constitution is a National Charter
pregnant with social revolution, not a Legal Parchment barren of militant
values to usher in a democratic, secular, socialist society which belongs
equally to the masses including the harijan-girijan millions hungering for
humane deal after feudal-colonial history’s long night. We could not apprehend the social dimension
of the stark squalor of SC & ST by viewing Article 16 (4) through a narrow
legal aperture but only by an apercu of the broader demands of social
democracy, without which the Republic would cease to be a reality to one-fifth
of Indian humanity. Our constitution is
a dynamic document with destination social revolution. It is not anaemic nor neutral but vigorously
purposeful and value-laden as the very descriptive adjectives of our
Republic proclaim. Where ancient social
injustice freezes the genial current of the soul for whole human segments our
Constitution is not non-aligned.
Activist equalisation, as a realistic strategy of producing human
equality, is not legal anathema for Articles 14 and 16. To hold otherwise is constitutional
obscurantism and legal literalism, allergic to sociologically
intelligent interpretation.” After
this extended enunciation of the purpose of the constitution, the Justices
locate the sources of interpretation, in the following words: “We do not have to venture upon a voyage of
discovery to find the spirit and sense of the Constitution; we do not have to
look to any extraneous sources for inspiration and guidance; they may be sought
and found in the Preamble to the Constitution, in the directive principles
of State Policy and other such provision.”
The judicial wheel
had, indeed, has turned full circle from the Champagam Durairajan judgment of 1951!
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