On the run up to the Uttar Pradesh Assembly polls early next year Chief Minister Miss Mayawati has adroitly played the caste card. She wooed upper caste voters by acknowledging that many of the poor among the upper castes were economically deprived. She said: "This is the main reason why poor and unemployed people among the upper castes have been demanding reservation on economic basis in the sphere of education and government jobs. The BSP fully supports this."  She indicated that she would create quotas for the upper caste poor. 

However there is a complication. If she creates a quota for merely the poor, reservations in that quota would be open to all the poor regardless of caste. If she specifies the upper castes that may qualify for the proposed quota she would be creating an unconstitutional law. Article 16 (2) of the Constitution states: “No citizen shall, on grounds only of religion, race, caste, sex, descent, residence or any of them, be ineligible for, or discriminated against in respect of , any employment or office under the State.”

In the light of this how has caste based reservation become law? It happened because the government played a deceitful trick and the judiciary through perverted logic allowed an unconstitutional law to become legal. The government in order to circumvent Article 16 (2) misused Article 16 (4) which states: “Nothing in this Article prevents the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services of the State.” 

Subverting Article 16 (4) the government created the Backward Classes category. Several criteria were listed to define backwardness. One criterion included was caste. Weight was give to each criterion. By giving preponderant weight to caste the Backward Classes became defined for all practical purpose by caste. The courts allowed this duplicitous sleight of hand by the government to make a mockery of the Constitution.

The simple question that the courts never addressed was: If on principle caste cannot be a single criterion for reservation, how can it become one criterion among others for reservation? The Constitution enunciated a principle which cannot be glossed over by hiding caste among other criteria for the purpose of reservation. Thereby caste reservation which clearly is unconstitutional has been allowed to become legal!

Even if this distortion is accepted there is a serious complication in giving reservation to the upper caste poor by specifying caste. Disproportionate weight was given to the deprived castes to enable them to masquerade as members of a Backward Class. The same cannot be repeated for upper castes that are socially forward. Therefore if Miss Mayawati wants to help the upper castes by offering reservation to the poor among them on the basis of economic criteria, she cannot deny entry to even non-upper castes into the same quota. This is Catch-22. Miss Mayawati would be well advised to consider scrapping all caste based reservation for Other Backward Classes (OBC) and instead offer a general and generous reservation quota on the basis of economic criteria ignoring caste. She is unlikely to do it for the electoral risks this would entail. But has she ever considered gambling for a political wave that could make her a real game changer in national politics?