Mint Explainer: Could Karnataka's election force a change in India's reservations policy? | Mint

Mint Explainer: Could Karnataka's election affect India's reservations policy?

After the BJP increased Karnataka's overall reservation to 56% of all government employees the Congress suggested boosting it to 75%
After the BJP increased Karnataka's overall reservation to 56% of all government employees the Congress suggested boosting it to 75%

Summary

  • Both the BJP and Congress have promised voters caste-based quotas in excess of the 50% cap imposed by the Supreme Court in 1992. This is easier said than done

Karnataka's politicians from both the ruling Bharatiya Janata Party (BJP) and the opposition Congress have been making election promises related to reservations ahead of the assembly polls on 10 May. The outcome could have awkward implications for MPs and Supreme Court justices, as both political parties have pledged to breach India's reservation restrictions if elected.

How would changing Karnataka's reservation laws affect India's reservation policy?

The Supreme Court of India conditionally limited reservation in government posts, which are a proxy for income stability and highly desirable in India, to 50% of the total in the Indra Sawnhey vs Union of India case in 1992.

Nonetheless, in the run-up to the election, the BJP increased Karnataka's overall reservation to 56%. The Congress suggested boosting it to 75% of all government employees on May 2.

Both parties expect the union government to place the amended policy in the Ninth Schedule of the Constitution, an exceptional legal device that can shield any legislation from judicial review. This is a daunting task. The only other state to have done so is Tamil Nadu, which expanded quotas to 69% in 1971 with the help of a friendly coalition government in Delhi.

Attempts to bypass reservation restrictions in states including Maharashtra, Chhattisgarh, Madhya Pradesh, Telangana and Andhra Pradesh have been rejected or challenged by courts ever since the Supreme Court’s ruling in 1992. If Karnataka succeeds, the union government will be forced to negotiate with other states that want to expand their reservation quotas, potentially undoing decades of legally sanctioned efforts to limit reservation.

What have the BJP and Congress promised voters on reservations?

According to most surveys, the BJP faces a difficult battle in Karnataka owing to anti-incumbency and a perceived loss of support among its traditional voters – Lingayats and Vokkaligas. The stakes are higher since losing Karnataka would wipe out the BJP in south India and weaken its hold on Bengaluru, one of India's most important cities.

As it neared the end of its term, the government increased quotas to gain support from the dominant Lingayat-Vokkaligas, Dalits, and far-right Hindutva supporters. The government boosted the quotas for Lingayats and Vokkaligas by two percentage points to 6% and 7%, respectively. It increased the quotas for scheduled castes and tribes by two and five percentage points to 17 and 7%, respectively. It also removed a quota for Muslims. However, the Supreme Court has put the move on hold until 9 May, the eve of the election.

This increased total caste-based reservation in the state to 56%, excluding another 10% earmarked for economically disadvantaged sections (EWS). In response, the Congress has said it will increase quotas by the same amount, and some more, taking total caste-based reservations to 75%.

Will the reservation laws be reconsidered since other states are clamouring for similar increases, too?

Studies show that identifying as a lower caste can hurt your career prospects in India. The country has long institutionalised affirmative action by giving government jobs to low-caste communities. However, this has become polarising for two reasons: One, it has fed a sense of grievance, sometimes growing into militancy, among those who feel alienated and discriminated against.

Two, several communities that feel threatened by the new economic order, have agitated – sometimes violently – for their inclusion. These include the Patidars in Gujarat, Jats in Haryana, and Marathas in Maharashtra.

The Marathas have forced several state governments of late to grant them reservations in excess of 50%. Most of these moves have been struck down or are in the courts.

In 2021 the five-judge Constitution Bench of the Supreme Court unanimously declared a Maharashtra law that provided reservations for Marathas unconstitutional as it violated the 50% cap on quotas.

The main shortcoming of such moves, as observed by the courts, is a lack of facts that would justify an increase in the quota. The 1992 judgement is not a hard and fast rule –- it allows governments to exceed the 50% limit provided they support their case with statistics.

For example, in the Maharashtra case, the Supreme Court held that the 50% limit should not be reconsidered as the state failed to lay out an “extraordinary situation" that would warrant an exception. Even in Karnataka’s case, the court criticised the state for basing its case on an interim report by the Karnataka State Backward Classes Commission and not an empirical study by a dedicated panel.

Notably, the Karnataka administration has not formally disclosed the findings of a caste-based census for a long time (they were leaked informally), possibly because this could substantially alter the perception of castes that are considered socially backward.

The latest developments in Karnataka are merely the tip of the iceberg. The bigger question is where political parties' sympathies lie — in helping people who truly need and would benefit from reservations, or simply to win elections by any means necessary.

What is the role of the Ninth Schedule in reservations policy?

States that try to increase reservations using the Ninth Schedule are essentially requesting backdoor admission. Communities that corner larger quotas in this manner may become, if they are not already, the dominant castes. This would violate the very spirit of reservations.

Yet, the Ninth Schedule is one of the most significant laws to have shaped the discussion around reservations in recent times. Apart from Karnataka, states like Maharashtra, Chhattisgarh and Telangana have recently asked the Centre to include reservation laws in this category after their proposed quota hikes were challenged in courts.

The Ninth Schedule, which is part of the First Amendment, is a notorious repository of laws. Its origin lies in India's first government under Jawaharlal Nehru, which crafted laws such as the one that revoked the rights and privileges of zamindar intermediaries, appointed by the colonial administration, and placed agriculture directly under the government. But the courts, working within the framework of a newly enacted liberal, democratic Constitution, proved to be a significant roadblock.

The Ninth Schedule thus emerged as a means of excluding a set of laws from judicial review, underlining the power of the administration and parliamentary departments, and that of Nehru and the Congress.

Although it was originally designed for land reforms, it has since encompassed over 200 laws relating to everything from freedom of speech to economic crimes. It is also arguably the most misused part of the Constitution. During the 21-month Emergency, which began in 1975, as many as 47 laws dealing with the arrest of adversaries, conducting elections, and so on were transferred to the Ninth Schedule.

However, in a nine-judge ruling in 2007, the Supreme Court said laws inserted into the Ninth Schedule through constitutional amendments would be subject to its scrutiny if they affected the basic structure of the Constitution or eroded fundamental rights.

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