The Andhra Pradesh High Court struck down the government’s proposal to create a sub-quota for minorities from within the quota reserved for Other Backward Classes (OBC). The government has announced intention to appeal against the judgment in the Supreme Court (SC). That is a very welcome step. It opens up the possibility of the SC rectifying its longstanding constitutional error.

The Andhra High Court considered the government’s move to be unconstitutional. The court held that the very use of the term “for minorities” indicated that the sub-quota was for religious groups. The court ruled: “This is violative of Article 15(1) and 16(2) of the Constitution, which declare that no citizen shall be discriminated in the basis of religion.”

The court is right as far as it goes, but it does not go far enough. Interestingly, the court invoked the Articles of the Constitution that had been quoted by me earlier in these columns to argue that if caste reservation is deemed constitutional so must be reservation on the basis of religion. Otherwise, and more logically, reservation on the basis of both backward caste and of religion is equally violative of the Constitution. Therefore reservation for the OBC quota should be scrapped and replaced by reservation based on economic criteria. When this proposal was mooted earlier the BJP argued strongly against reservation on the basis of religion. It has currently stepped up similar criticism. What was written earlier on this subject in these columns bears repetition.  

On 26 December, 2011 I wrote:

“Clause 2 of Article 16 of the Constitution which states: 'No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.'  But by this Article reservation on the basis of caste or gender is equally debarred. So how have backward castes got reservation?

“Backward castes got reservation through too-clever-by-half distortion of the Constitution which the Supreme Court regretfully and tragically endorsed. Clause 4 of Article 16 of the Constitution states: 'Nothing in this article shall prevent 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 under the State.' So all that the government did was to make a list of criteria to determine class backwardness and include caste as one criterion. After that weight was given to each criterion listed. Caste was given undue weight that rendered backward castes virtually to become backward class. 

“How the Supreme Court endorsed this official chicanery is a mystery. If caste on principle is debarred from becoming a criterion for reservation it cannot be that the principle applies when it is the primary criterion but does not apply if it is a subsidiary criterion among other criteria. A principle is a principle come what may. If by this interpretation caste can be used to justify reservation so can religion and gender going by Clause 4, Article 16 of the Constitution. Therefore if the BJP objects to religion as a ground for reservation so must it object to caste as ground for reservation. That renders opposition to all the OBC quotas. But the BJP dare not do that for fear of alienating a big chunk of the Hindu vote.”

The government must have seized on the word “only” from Article 16(2) which states ‘No citizen shall, on grounds only of religion, race, caste, sex…’ to twist its meaning and imply that any of these criteria would cease to disqualify reservation if combined with other criteria. This is strange logic and it needs to be reappraised which hopefully the SC might if the issue comes up before it again. Logically, either reservation for both OBC and religious minorities is unconstitutional, or reservation on the basis of religion is constitutional. 

The Andhra High Court seemed to justify the OBC reservation because the National Commission for Backward Classes (NCBC) that determined it was a statutory body with a mandate to make changes in OBC reservation. But can a statutory body so empowered go against the Constitution in making its recommendations? The NCBC recommendations are absurd. 

Banias are listed backward in Bihar but forward in Delhi. Yadavs are listed forward in Haryana but backward in UP. If the same caste can be forward or backward in different parts of the country how relevant is caste? What if the husband is a Yadav belonging to Haryana married to a Yadav from UP who have a son domiciled in Chennai? Will he be forward or backward?

The ground realities of caste based reservation have made things even more absurd. Reservation quotas are monopolized by a few politically dominant and powerful castes while the rest languish without relief. There are more than 3000 castes officially listed among the OBC list.      

All thinking Indians should dispassionately review the consequences of reservation based upon caste instead of on economic criteria. Jats in Haryana incensed that the equally powerful Yadavs have quotas in UP are violently agitating for backward status. The entire society is divided by disputes and rivalries based upon identity. One requests leaders like Sharad Yadav, Nitish Kumar, Mulayam Singh and Laloo Yadav to consider whether they would benefit their constituencies more by continuing with reservation quotas or by hastening free compulsory primary education for all children which is economically feasible. Caste quotas are obsolete policy for a new generation of Indians. One hopes that the SC and our politicians rise to the occasion and bury this pernicious policy.