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Reservation: Iron cuts iron

A. J. Philip A. J. Philip
14 Nov 2022

The 66th Kerala Piravi (birthday) celebrations at the Kochi House-turned-Kerala House lasted for a week (November 1-7). Kerala was formed on November 1, 1956, by integrating parts of the princely states of Travancore and Kochi and the Malayalam-speaking areas of the Madras Presidency known as Malabar. 

This followed the recommendation of the States Reorganisation Commission headed by Fazl Ali with Hridaynath Kunzru and K.M. Panikkar as members. Language was chosen as the deciding factor for the formation of states.

To return to the present, as many as 100 cultural programmes involving no less than 1,000 artistes were staged on this occasion. Sini K. Thomas, who started her career with the Indian Currents and who is now the Information Officer at Kerala House, was the person who organised the celebrations in collaboration with many Malayali cultural organisations, including the oldest of all, Kerala Club, founded in 1939 by VP Menon, the person who integrated all the princely states into what is known as India that is Bharat.

One of the highlights of the programme was the staging of the one-act-play Nokkukuthi Theyyam (Scarecrow God), written by Prof Omchery NN Pillai several decades ago. There was a reason to stage the play as Kerala House wanted to honour the nonagenarian playwright, who won the recently-instituted Kerala Prabha award.

I do not know how many of the people, who assembled there to watch the brilliant acting by Shibu Raghavan, realised the significance of the day, accidentally chosen for staging the play. I will come to that in an instant.

The drama is about a Brahmin youth who did exceptionally well in studies securing first class first in M.Sc Physics. His forefathers belonged to a Brahmin household which controlled hundreds of acres of land. Reforms related to ownership of land deprived the family of its land holdings. 

He has the records of the land the family once held but they have no value as the land is now owned by those who were their sharecroppers or servants. Their sprawling house, which his father had to vacate, is now owned by a family retainer. It is now used for shooting popular films.

For at least three generations, the family has been poor. His parents hoped against hope that he would be able to get a good job, manage the family and marry off his sisters. Because he was a Brahmin, he could not even apply for many jobs, as they were reserved for lower castes. Finally, a private college offered him a lecturer’s job for which he was asked to pay Rs 8 lakh as donation. 

When he laughed over the suggestion, the chairman of the interview board asked him why he did so. “Sir, when I do not have even Rs 8 in my pocket, how can I raise Rs 8 lakh? That is why I laughed”. His dialogues are quite biting. 

For instance, he mentions how the minorities have started educational institutions where jobs are given to those who can pay. Yes, the rich are a minority and they are the ones who have always benefited. They can either create jobs or buy them.

He manages to run the family by working as a labourer. His fellow workers do not consider him as one among them as he is educated. He is, therefore, not a member of their union. He has work only when a regular worker takes leave or is unable to work. He lamented the fact that he did not have enough money to buy oil to let her sisters oil their hair, long like his mother’s. As they do not have a proper dress, they prefer to remain indoors most of the time.

He had a girlfriend who was ready to sacrifice everything if she could be with him. How would he support her? He himself persuaded her to think of a better future. Her relatives were able to convince her that it was pointless to think about a penniless Brahmin.

Taking pity on him, the Scarecrow God offers him His own job. He has to wear the Scarecrow’s dress and stand there to protect the crops day and night, rain and shine. Only Pillai could have written such a socially relevant play that highlighted the inequities in the social system. The play sought to undermine the rationale for reservation when it did not extend itself to the poor among the Upper Castes.

Alas, everything is not black and white. There is something called grey between black and white. Let us come to that.

On the day the play was staged, the Supreme Court of India held as valid the 103rd Constitution Amendment enacted by the Narendra Modi government in 2019. The law was aimed at providing 10 percent reservation for the economically weaker sections among the general category for admission and jobs. It was a Constitution Bench of five judges which heard over 40 petitions questioning the validity of the Amendment.

Those who have studied the history of reservation know that it was first introduced for a period of ten years. It was extended every ten years. Political parties like the Bharatiya Jan Sangh, the forerunner of the Bharatiya Janata Party, were opposed to reservation on the ground that it undermined merit, competence, capability etc. 

The beneficiaries of reservation constituted a large section of the people and no political party wanted to antagonise such a section. That is why none of the parties showed the guts to oppose reservation when it was extended every ten years. Some time ago, the RSS chief spoke against reservation but, sooner than later, he was forced to amend his views. However, the Sangh Parivar has found an ingenious way to undermine reservation. The 10 per cent reservation for the economically weaker sections is one of them.

Usually, a dissenting judgement or a minority judgement has only academic value, as it is the majority judgement which will prevail. However, in the 3-2 verdict given by the Supreme Court on the petitions that challenged the 103rd Constitution Amendment, it is the minority verdict that received greater attention. 

One of the reasons could be that the then Chief Justice UU Lalit preferred to endorse Justice Ravindra Bhat’s dissenting verdict. It is seldom that a chief justice, who is on the verge of retirement, prefers to be in the minority on a Constitutional issue. This itself has elevated the minority verdict from the ordinary to the lofty. 

Of course, the Union government has every reason to be satisfied with the outcome, as it upholds the law it enacted in 2019. Had there been no dissenting judgement, i.e., had Justice Bhat not articulated his dissent, the public would not have even known that there were two opinions on the 10 percent reservation for the poor among the Upper castes and the minorities like Christians and Muslims. 

The amendment was questionable, as it sought to introduce a new doctrine in affirmative action. Until 2019, reservation was available only to those castes and groups which were socially and educationally backward. That is how the Scheduled Castes and the Scheduled Tribes were entitled to reservation because they had been suffering from social inequities for hundreds of years.

Nobody can say that the child of a scavenger, who may be a Christian or a Muslim, is better placed socially and economically than the son of a Brahmin. Such a child is not entitled to any reservation for admission or job because their religions are supposed to be egalitarian. It is on this ground that the BJP has been opposing the demand for reservation for Scheduled Caste Christians and Muslims even after reservation was provided for Scheduled Caste Sikhs and Buddhists.

When 27 percent reservation was introduced under the Mandal Commission report, the argument was that it was necessary to uplift the OBCs educationally and socially. It was the educational and social backwardness of the other backward castes (OBCs) that was considered by the Mandal Commission. Their economic condition was never considered. For instance, in UP, the caste to which the Birals belonged was eligible for reservation under the Mandal formula.

It was the Supreme Court which ordered a 50 percent ceiling on all kinds of reservation. However, the court also introduced a new concept of the “creamy layer” under which the socially and educationally backward should not have a yearly income of Rs 4 lakh to be eligible for reservation. 

Of course, the court built into the Constitution a clause that specifically mentioned that while ordinarily the 50 percent limit remained, there could be situations whereby the ceiling could be breached. It is this clause that has allowed the five-member Bench to grant a wholesale 10 percent extra reservation for the EWS under the 103rd Constitution Amendment Act. Nobody knows how this verdict will impact the case pending in the apex court against Tamil Nadu which has introduced reservation far in excess of 50 percent.

The exclusion of Scheduled Castes and others from the 10 percent reservation is certainly discriminatory in nature. The Constitution specifically mentions that it does not tolerate discrimination on any ground, be it economic, gender or caste. That is why the argument that the 103rd Constitution amendment contravenes the basic structure of the Constitution is raised. Reservation for the EWS is available to those who have a yearly income of Rs 8 lakh with the sizes of the houses and plots of land they own specified. 

A person may have a large house or flat inherited from his parents or other relatives but he may still be poor as he does not have access to money. Also, a person who is rich can squander away his properties and declare himself a pauper, to be eligible for reservation. 

To give an example, the younger brother of Mukesh Ambani, Anil Ambani, was a very successful businessman. It was he who built the Airport Metro Line in New Delhi.

Alas, all his companies failed in the marketplace. He was unable to pay his debtors. He virtually declared himself a pauper. Yet, when he was questioned how he was able to manage his luxurious lifestyle, he claimed that he borrowed money from his mother. Now the point is that he can also claim jobs and employment for his children under the 10 percent quota, as they are poor.

At the other end is Anoop, an auto-rickshaw driver in Kerala. He won the Onam bumper lottery prize of Rs 25 crore. Even after tax he will get Rs 15 crore. A poor man suddenly becomes rich and a rich man suddenly becomes poor. That is why reservation on economic grounds was never given. Poonthanam is a great Malayalam poet. His Jnanppana is the Bhagavad Gita of the Malayalees.

This is what he writes about the ephemeral nature of life: “If God wishes, the people we see now or are with us now, may disappear or be dead in the next moment. Or if He wishes, in a few days a healthy man may be paraded to his funeral pyre.

“If God wishes, the king living in a palace today may lose everything and end up carrying a dirty bag on his shoulders and walk around homeless.”

A laborious person who gets less than Rs 8 lakh a year can increase it several times. However, this reservation does not encourage him to stand on his own legs. Why should he deprive himself of reservation by working hard?

Because of corruption, it will not be difficult for the resourceful among the socially and educationally forward castes to manipulate the income certificates to deprive the real poor from getting the benefits of reservation. 

The economically poor should have received benefits like scholarship and fee concessions and not reservation in admission and employment. It is no secret that efforts have been made at various levels to abolish reservation by introducing new concepts like extension for the retired, appointment of contract staff and what is known as “lateral entry” for those in the private sector. 

In other words, reservation as such is being undermined in a hundred and one ways. Reservation for the “poor” among the educationally, socially and culturally privileged is, alas, one of the last nails in the coffin of affirmative action in the country. As the saying goes, only iron can cut iron.

ajphilip@gmail.com

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