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HomeColumnsFaizan Mustafa writes: RSS chief’s support for caste-based reservations is neither surprising,...

Faizan Mustafa writes: RSS chief’s support for caste-based reservations is neither surprising, nor sudden

“The worst form of inequality is to try to make unequal things equal”, said Aristotle. India has many kinds of “unequals” who have been historically disadvantaged and exploited. On September 5, RSS Sarsanghchalak Mohan Bhagwat said, “We kept our fellow human beings behind in the social system. We did not care for them and it continued for 2,000 years… reservations have to continue till there is such discrimination.” This acknowledgement of discrimination and the hierarchical caste inequality by the RSS chief is not just a passing remark, particularly at a time when a statement by Udhayanidhi Stalin on caste discrimination has sparked a debate. His statement that reservations may continue for another 200 years or till inequality persists deserves commendation.

But has the RSS chief been inconsistent on the issue of reservations? Certainly not. On October 7, 2022, he had said that “we must throw the caste and varna system out, lock, stock and barrel”. Even in 2015, Bhagwat had not opposed reservations — he had just called for a debate to be held on the subject in a harmonious atmosphere between those who are for social justice through reservations and those who favour merit and are opposed to reservations. The reservations debate is divisive and is considered “anti-merit” — a compromise on quality and efficiency of administration. Of course, no one knows what “merit” and “efficiency” really mean. The RSS itself does not have clarity on reservations and that’s why it has been talking on the issue in multiple voices.

Is the BJP on the same page as the RSS chief on the issue of reservations? If so, why is there opposition to Bihar’s caste survey? Many are overreacting to the welcome statement by the RSS chief and looking at it from the perspective of electoral compulsions and the INDIA alliance’s emphasis on social justice. But then, caste was almost made irrelevant in the 2019 general elections and the 2022 UP elections and BJP did make inroads into the so-called Dalit vote bank.

Since the temporary nature of Article 370 was recently argued at length by the Government of India in the just-concluded constitution bench hearing, it is pertinent to recall that SC/ST reservations in Parliament were made initially for just 10 years. Thus, unlike Article 370 which referred to no time frame, this reservation was indeed temporary. As far as reservations in jobs and educational institutions are concerned, this is on weaker ground as there is no fundamental right to reservations. Articles 15 and 16 are merely enabling provisions that lay down that if the state decides to make reservations in favour of SC/ST/OBC/EBC, this will not be considered a violation of the right to equality. Thus, any government is free to end reservations as and when it wants. But then, under the substantive equality mandate, reservation provisions are no longer understood as exceptions, but as part and parcel — and indeed, an extension — of the right to equality.

This is not the first time that Bhagwat has spoken on reservations. In September 2015 too he had called for a review of reservation policies and suggested setting up an apolitical committee to undertake this exercise. In an interview to the RSS mouthpiece Organiser, he said, “We believe in forming a committee of people genuinely concerned about the interests of the whole nation and committed to social equality, including representatives from the society. They should decide which categories require reservation and for how long.” Though he did not advocate abolition of reservation, the BJP lost the Bihar election and Bhagwat was blamed for it. By December 2016, Bhagwat said, “As long as discrimination remains in society, reservation is needed.” Meanwhile, at the Jaipur Literature Festival, Manmohan Vaidya, the then head of the RSS’s Communications Department, had advocated for the abolition of reservations and said that “it is against the principle of equality. (Give them) opportunities, not reservations.” In yet another damage control exercise, the RSS joint secretary clarified that “the underprivileged deserve reservations”. Thus, there has been some difference of opinion within the RSS.

Even BJP governments, rather than abolishing reservation policies, have been extending them to newer categories. In Maharashtra, the BJP government under Devendra Fadnavis had extended reservations to Marathas, although the Mandal commission had identified them as forward caste. The state backward class commission had also twice refused to consider them OBCs. Eventually, the Supreme Court found such reservations unconstitutional. Similarly, BJP governments had extended reservations to Gujjars in Rajasthan and Patidars in Gujarat. There was no statement from the RSS in opposition to these extensions to newer and politically dominant groups.

Prior to the 2019 Lok Sabha elections, even the Modi government, in an unprecedented move, had amended the Constitution and created a new category of economically backward classes and provided 10 per cent reservations to them, over and above existing reservations. The Supreme Court upheld this amendment in 2022. The Modi government had even argued in favour of reservations in promotions in Jarnail Singh (2018). All these actions of the BJP demonstrate that it is not opposed to reservations. In fact, it favours extending reservations to newer groups and does not even consider the 50 per cent ceiling imposed by the Supreme Court as sacrosanct.

There is certainly a need to examine some highly contentious issues about our reservation policies: How far have the benefits percolated downwards? Has an elite within the SCs/STs monopolised all the benefits? Should we extend the exclusion of the creamy layer to SCs/STs as well? Should the benefits of reservations be confined to admissions or jobs? Should benefits regarding promotions be continued or withdrawn? The Supreme Court did not permit it, but the Constitution was amended to restore it. What should be the limits of judicial review with respect to affirmative action policies? Should courts be allowed to apply the strict scrutiny test? How do we define backwardness? Should social backwardness be replaced with economic backwardness as the primary reason for reservations? Have the 11 parameters of social and educational backwardness identified by the Mandal Commission and approved by the nine-judge bench of the apex court in Indra Sawhney (1992) become outdated and in need of revision? Since the government has very few jobs today, should reservations be extended to the private sector?

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Similarly, in some states, if the number of SCs/STs and OBCs is more than 75 per cent, insistence on a 50 per cent upper limit for reservations becomes problematic. The SCs and STs have 22.5 per cent reservation in proportion to their population. On the basis of the 1931 census, the Mandal Commission itself had found that 52 per cent of India consists of OBCs. But only 27 per cent were given reservations due to the upper limit of 50 per cent.

If we are convinced that reservations do promote equality, the question of the policy’s abolition becomes redundant. Even Western countries promote diversity. Reservations have contributed to greater diversity in government jobs. It is sad that due to electoral arithmetic, such an important issue is not objectively discussed and examined. Accordingly, all reservation Bills have been passed with near unanimity. Political parties have found the shortcut of reservations to prove their commitment to constitutional egalitarianism. A statesman must bring about change in the thinking of people rather than getting carried away by popular and irrational demands. Let the special session of Parliament starting from September 18 debate every dimension of reservations, including the big question mark on the constitutionality of the presidential order of 1951 that arbitrarily excludes Dalit Christians and Pasmanda Muslims from the SCs.

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The writer is Vice-Chancellor, Chanakya National Law University, Patna. Views are personal

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