Prof G Mohan Gopal at Idea Exchange: Reservation is a tool for representation. If we find a better tool, throw it into the Arabian Sea | Idea Exchange News,The Indian Express
Former Director of the National Judicial Academy, he has had stints with the World Bank, ADB, and was a member of SEBI. Gopal, also former Director of the Rajiv Gandhi Institute of Contemporary Studies, was in news recently when he argued against the EWS quota amendment in the Supreme Court.
I was not surprised that the majority upheld the amendment. We were hoping to get at least one dissent. We got two dissents and that speaks volumes for the independence, openness, professional integrity and professional quality of the two judges who dissented because they certainly did not start out having a position on it. I think it has given us rich material for understanding what this judgment really is. In the very first hearing that we had, I told the court that I believe that this is not an ordinary case. It is what I would call the ADM Jabalpur of social justice. Now after the result, and reading the three majority judgments, I would say it is the Jallianwala Bagh of social justice. ADM Jabalpur in the sense that it is a judgment that this Court will regret for a long time to come and will bring it to disgrace for a long time to come. And Jallianwala Bagh in the sense that it slaughtered many principles and fundamental visions of the Constitution.
The most important victim of this judgment is the idea of reservation, which had a lot of integrity in the Constitution. The idea of representative democracy as being a fundamental pillar of democracy has been codified into the Constitution. Reservation is only a tool for representation. If we find a better tool, we’ll throw reservation into the Arabian Sea.
A person is a member of the Backward Class only when that person applies to that category. So this is just a set of eligibility criteria for different kinds of weaknesses. All of this ultimately goes back to Article 46, which says the state shall take care with special interests of the educationally and economically weaker sections of the population, especially Scheduled Castes and Scheduled Tribes. And EWS, according to the government, is made in pursuance of Article 46. So you’re looking at weaknesses, you’re identifying different kinds of weaknesses and then you’re identifying a weakness that is associated with the criteria set out in the SC, ST and SC criteria, which is the essence that you are suffering from lack of representation.
Caste is not a criterion for social or educational backwardness. A group has to fulfill 15 or 20 criteria, not one of them says you have to belong to a caste. Now, caste can be a class, it’s a group, but a class is not a caste
Why did they need to refer to 15 (4) pr 16 (4) at all? If your intention was to give it to socially and educationally forward classes, your first responsibility is to say that explicitly and directly. Why? Parliament says that they’re making this law under Article 46, which says you shall take special care of educationally and economically weaker sections, especially SCs and STs. And you’re saying that you’re making a law on Article 46 and excluding SCs and STs? Forget the OBCs. You’re again arguing that 50 per cent is of those who are not getting reservations. But why have you allowed those who are not getting reservations to get women’s reservations, sportspersons reservations or PwD reservations? Is that not a disqualification to the EWS? Is that not a double reservation? It’s only OBC, SC and ST reservation that becomes a double reservation. This is not for people who don’t get reservations, it is very much for people who are entitled to plenty of other reservations — domiciliary reservation, children of officials reservation, and so on. It simply says you cannot be from the lower caste. What about those who are excluded from the creamy layer of OBC? They are also affected by this 50 per cent reduction. The creamy layer, excluded from OBC, can only be in the 50 per cent open quota.
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