SC verdict on Jats & it implications for Kapus

One can find fault with the AP government for not acting immediately on its key electoral promise of providing for Kapu reservations. But, none can question the procedural aspect of deciding on the question of reservations. In the light of the SC rejection of Jats’ demand for reservation, it can be said that Kapus on the basis of caste alone cannot claim reservations

Knowingly or unknowingly, film star and seasonal politician Pawan Kalyan has asked a curious question. He wants the government to clarify whether or not reservation for Kapus is possible. Chandrababu Naidu wants Kapus to appreciate the fact that his government has appointed a commission to look into the issue as such a course is legally advisable. Mere issuance of GO may satisfy political anxieties, but may not be legally tenable.

Naidu has no explanation to offer for the delay in appointing such a commission. Precisely this is the reason why Mudragada Padmanabham calls it delay tactics to bury the issue. But, the Kapu leaders’ ultimatum to implement reservations at a gun point may also not be legally viable if one looks into the Indian jurisprudence.

Reservations for any community cannot be accorded at the sweet will of any particular government. Nor it can be done due to political pressure by any politically organised community. To understand this, it may be worth recalling the relevant constitutional and statutory provisions.

• Clause (4) of Article 15 provides that “nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens”
• Article 16 which provides for equality of opportunity in matters of public employment provides in Clause (4) thereof that “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”.
• Article 46 casts upon the State a duty to promote the educational and economic interests of the weaker sections of the population... and to protect such citizens from social injustice and exploitation.
• Article 340 of the Constitution envisages the creation of a Commission, inter alia, to investigate the conditions of the socially and educationally backward classes and the difficulties under which such classes labour; and to make recommendations as to the steps that should be taken to remove such difficulties and improve their conditions etc.

Therefore, one can find fault with the State government for not acting immediately on its key electoral promise of providing for Kapu reservations. But, none can question the procedural aspect of deciding on the question of reservations. Therefore, the Chief Minister was correct when he said that he cannot hurriedly issue a GO but can only decide on it after consulting the statutory body.

According reservations for any group of citizens cannot, therefore, be a political decision alone but is a constitutional and statutory process subject to judicial review. This is evident from the fact that the judiciary has struck down the decision taken by the UPA government on extending reservations to Jats in nine States.

Courts have set aside many administrative decisions made in ignorance of relevant material, or is based upon patently irrelevant material or for that matter is made mala fide. The assessment of a statutory Backward Classes Commission can constitute relevant material.

In Ram Singh vs. Union of India popularly called Jats reservations case, the apex court said, “Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste.

Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out to the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste-centric definition of backwardness.”

The affirmative action for weaker sections through the form of reservations is for backward classes but not backward castes. The constitution deliberately uses class in the relevant provisions quoted above. The sociological research in India certainly justifies the argument that socially backward castes in India are largely socially backward classes, too. Thus there is a close proximity between caste and class in India.

However, the caste and the class cannot be taken as homogeneous entities. It’s wrong to reject the similarities between these two sociological constructs in the Indian context. But, it is equally wrong to view them alike. This is what the Supreme Court made it clear in several of its judgments.

The court has upheld this position in judgments spanning five decades, indicating that this is a settled interpretation of constitution unless the constitutional courts adjudicate otherwise. For instance in M R Balaji vs. State of Mysore in 1963, the Supreme Court held that a purely caste-based policy of reservations would violate the Constitution.

While this blanket position was undermined in NM Thomas and Indra Sawhney, the position remains that while castes, which are generally “socially and occupationally homogenous classes” (Indra Sawhney, para 84), can constitute a convenient starting point for a reservations, the ultimate criterion is class backwardness.

This means that caste groupings do not exhaust the scope of reservations under the constitutional scheme; and conversely, to the extent that a caste wishes to claim the benefits of the reservation scheme, it must demonstrate that qua class, it suffers from the social backwardness that Article 16 envisages.

The Supreme Court in Ramsingh case further said, “An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandate.”

In National Legal Services Authority vs. Union of India, the apex court observed, “New practices, methods and yardsticks have to be continuously evolved moving away from caste-centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action…”
Interpreting the demand of Kapus in the light of these judgments, it can be said that Kapus on the basis of caste alone cannot claim reservations. Kapus accuse of historical injustice to their community as political parties played with their sentiments time and again. Even though this accusation has a basis, the same cannot be the ground for justifying accord of reservations.

Like Jats, Kapus are also politically organised community having a decisive say in many Assembly constituencies. Their political significance has increased after the bifurcation of the state. This is precisely the reason the resumption of Kapus agitation has stirred up the state politics. But, the Kapu activist cannot be oblivious to the observations made by Supreme Court in regard to Jats.

The Court observed,“[the] inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.” The same description used to denote Jats (politically organised) can also be extended to evaluate the legitimacy of the Kapus demand for reservation.

The judiciary seems to be holding the view that politically powerful castes can leverage upon their political clout and might appropriate affirmative action like reservations. If so, the courts would obviously step in as the judiciary in a constitutional democracy is endowed with the responsibility of preventing brute majoritarianism taking the political process hostage to the detriment of discrete and insular minorities.

Stating that backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political, Supreme Court in the Jats case said, “The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution.

Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State.”