Politics of reservation
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Comparative study of the approach of the Supreme Court and Parliament to affirmative action
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RESERVED — How Parliament Debated Reservations 1995-2007: Rajeev Dhavan; Rupa & Co., 7/16, Ansari Road, Daryaganj, New Delhi-110002. Rs. 395.
N. R. Madhava Menon
This is an unusual book. Using the subject of reservation, the author compares and contrasts the approach of the Supreme Court and Parliament over a period of 12 years (1995-2007).
The object as the sub-title indicates is to analyse “how Parliament debated reservations.” In so far as reservation still occupies a dominant place in electoral politics and judicial battles, it is natural that the debate is full of the serious and the trivial, the rational and the emotional depending on the context and the people involved. One is not sure whether the subject had received the attention it deserved even in the Constituent Assembly. It has grown into an intractable issue in politics and governance, dividing people on caste and religious lines. The confusion is confounded because of the lack of the accurate data and the inability to develop an acceptable formula to measure backwardness for purposes of reservation.
Equality
Despite the author’s claim that the book is not about reservation, one finds discussion on reservation or affirmative action in every page. Of course, it is with reference to discourses in court or in legislature. They naturally differ because what is contested in court is what is decided in the legislature and vice versa, and the approaches obviously vary because their objects and methods are different. If the judiciary is supposed to have the final say on constitutional questions, the Parliament has the constituent power to change the basis of judicial interpretation through amendment.
As the author points out, this happened earlier also on the issue of right to property in relation to agrarian reforms. In partial agreement with the author, the noted lawyer Fali S. Nariman in his foreword to the book observes, “…While discussing the (reservation issue) 77th, 81st, 82nd, 85th, 86th and 93rd Constitutional amendments, the contribution of individual members was sparse and uninspiring… Our Parliamentary system of government is now reduced to the Executive being in the driving seat of governance, but never quite sure in which direction it is driving!”
It is beyond the scope of a newspaper review to go into the nuances and subtleties of the equality-affirmative action jurisprudence on which there is abundance of judicial opinions and academic writings. Unfortunately, judicial opinions varied depending on the composition of the Bench and the social context in which the issues were presented. For political parties it has been a life and death issue with the result they either indulged in empty rhetoric or studied silence.
History
The book is divided into three parts and seven chapters. The first part titled “Reserved Without Prejudice” attempts to capture the history of affirmative action through quotas for different groups. The implementation of the Mandal Commission recommendations by the V.P. Singh government and its challenge in the Supreme Court is discussed at length to draw out the implications of the Indra Sawhney judgment and the issues it left undecided. The role of the judiciary in this period has been to counteract the excesses of “vote bank politics” using the reservation game. Dhavan has been critical of the judges whom he described as “clever but mindless in approach and consequences.”
He then takes the reader to parliamentary debates between 1995 and 2007 to prove his point that it was more rhetoric or “vote catching silence” rather than reasoned debate. He is intrigued by the all party consensus on controversial constitutional amendments on the issue and wonders whether it was to promote justice or advance electoral realpolitik
Part II contains an analysis of the context and content of the five constitutional amendments around post-Mandal events. They were essentially to nullify the Supreme Court judgments. The author selectively reproduces interventions in Parliament seeking to establish that “Parliament abdicated its role.” “Using brute majoritarianism, Parliament negated the judgment on the carry forward rule ignoring the basic principles of equality,” writes the author. No member wanted to be seen even remotely opposing reservation to the Scheduled Castes (SCs), Scheduled Tribes (STs) and the Other Backward Communities (OBCs), however absurd the consequence of their action be. Politics was more important than constitutional principles and propriety.
The T.M.A. Pai Case (2002) and the Inamdar Case (2005) relate to the right of managements to run educational institutions and the scope of governmental intervention. It was declared by the court that reservation could not be imposed on private unaided institutions. Parliament again negated this ruling through the 93rd Constitution Amendment Act, 2005. The exemption was given for minority institutions, which was opposed by some as they perceived it as divisive and unsustainable. Neither the impact of the amendment on the quality of education nor its implication to the financial structure of educational institutions received the attention of members, which the author contends, put the future of education itself at great risk.
The third and final part of the book contains a narration of events which followed in economy and politics, and what they portend for reservation politics. An epilogue briefly reflects on the OBC Education Case (2008) which, according to the author, confounded the confusion. The author admits that as Counsel he switched sides initially arguing for OBCs (in Mandal Case) and later against them (in Punjab Cases). Is it an accident or a deliberate choice? Anyway, as one involved in persuading or dissuading the court in making its choices, can he be an objective critic of the judgment? Let the readers decide.
Overview
The book does provide an overview of the events in Parliament between 1995 and 2007 around the issue of reservation. However, it may be difficult to support the indictment of Parliament with the evidence that the author presents in his essays. No doubt, constitutional amendments do warrant greater debate; yet, it is too early to conclude that what it did was irresponsible.
Be that as it may. Here is an unusual book on a controversial issue involving the battle between two constitutional functionaries. It is for readers to assess who is right and who is wrong. The reviewer finds it difficult to condemn the actions and omissions of legislature on reservations in terms of electoral politics alone. There is no doubt that reading the essays of Rajeev Dhavan will provide the necessary background for understanding of the future developments on the reservation issue better. It will be interesting to watch which side he will be arguing and for what reasons.
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