New Delhi: The Union cabinet approved 10% reservation in government jobs and educational institutions for “economically-backward upper castes” today. This will be over and above the existing 50% limit for reservations. All those in the general category who do not earn more than Rs 8 lakh annually are likely to benefit if the decision is implemented. The government is expected to move a constitutional amendment bill to facilitate the process.

The decision follows statements by the Rashtriya Swayamsevak Sangh – the ideological parent of the Bharatiya Janata Party – attributing the BJP’s recent electoral losses to growing upper caste resentment against the Narendra Modi government.

In 2018, the BJP was defeated in polls to five state assemblies, two of which – Rajasthan, Madhya Pradesh and Chhattisgarh – it had held for three consecutive terms. The RSS leapt to declare that the ruling party was losing support from upper-caste groups, on account of its restoration of stringent provisions of the SC/ST (Prevention of Atrocities) Act.

Also read: Cabinet Approves 10% Reservation for Economically Backward Upper Castes

The Supreme Court had diluted certain provisions in the Act, but the Modi government restored them by passing a bill in the parliament.

A move to tame RSS resentment?

While the Modi government’s move will appease upper-caste voters at large, it also appears to be an appeasement measure within the Sangh parivar.

Although the RSS has been reaching out to SC/ST/OBC groups to consolidate its idea of Hindus, the top echelons of the parivar are still dominated by an upper caste lobby.

It is an age-old demand with the Sangh parivar that the current system of reservations should accommodate the poor who qualify as ‘General Category’. In 2015, Mohan Bhagwat, the RSS sarsanghchalak, demanded that reservations should not be given on the basis of caste but on economic criteria. Most scholars fear that reservations based on economic criteria is a back-handed method to render the current quota system ineffective and deny benefits to historically marginalised communities.

The BJP is suffering from problems that usually accompanies a party’s expansion. The party has grown dramatically in the last few years by reaching out to marginalised groups, which had never been one of its core constituents.

In combining its ideology and electoral strategy, however, the BJP has strained to integrate the interests of Dalits and adivasis along with its core support base of upper caste groups.

Also read: OBC Representation in Central Jobs Less Than Actual Quota: Government

After the electoral losses, the RSS sent a clear message to the BJP. “This [upper caste disenchantment] has been conveyed to the BJP leadership, although no review of the same has been suggested as a remedy,” the Hindu quoted a source as saying. The same report also said that some BJP spokespersons, close to the RSS, flagged the matter at a large meeting called by BJP president Amit Shah a few weeks before the assembly polls. According to the Hindu’s sources, the RSS believed upper caste anger was expressed in the unprecedented number of NOTA (None of the Above) votes in Madhya Pradesh and Rajasthan.

While the BJP’s signal endearing itself to the upper caste groups is clear, the Modi government will not be able to implement the intended 10% reservation. The government is reportedly thinking about accomplishing it through a constitutional amendment. The numbers stacked are against it in the upper house, however, and the opposition is unlikely to support the radical move.

Optics, not welfare

In that sense, the cabinet’s decision will only serve the purpose of polarising the electorate on the sensitive topic of reservations. This, in turn, may help the government divert attention from issues on which it has found itself pushed to the wall.

The opposition has been unrelenting in its attack on the prime minister for failing to curb unemployment, rural distress and price hikes of essential commodities and questioned his role in negotiating the controversial Rafale aircraft deal with France.

In reality, the government is battling accusations of failing even to implement the current system of reservations and generating enough employment.

Also read: The Way Forward for Caste-Based Reservations in India

Only recently, Union minister Upendra Kushwaha resigned from the National Democratic Alliance citing the inaction of the Modi government on categorisation of Other Backward Classes (OBC). “The policy of bifurcation of OBC category has not been submitted by the committee headed by Justice G. Rohini,” he wrote. “It clearly indicates that the government is not serious, hence there is a fear and confusion amongst the OBC category.”

Kushwaha was referring to the Justice Rohini Commission, constituted in 2017 to suggest sub-categories within the OBC for reservation benefits. It was given its fourth extension late last year.

Similarly, Kushwaha wrote that confusion about the new roster system in university teachers’ recruitment has entirely stalled new appointments, freezing jobs in Indian higher education.

Legal sustainability

“The move cannot be upheld constitutionally. The government will face multiple roadblocks,” said V. Krishna Ananth, a lawyer and Professor of History at SRM University, Amravati.

“Firstly, article 340 of the constitution says that reservation could be given to socially and educationally backward class of citizens. Which means reservation can be given to a class of citizens, not a group within a class,” he said.

He added that multiple judgements since independence finally culminating in Indra Sawhney and others versus Union of India (1992) restricted reservation of jobs and seats to not more than 50%. He said that the government would need to amend Article 15, 16, and 340 to implement its decision but even that would be subject to judicial review.

“Eventually, the court review will explore whether such an amendment violates the basic structure of the constitution, as Kesavananda Bharati vs State of Kerala (1973) had upheld. The court will look into the matter by referring to the constituent assembly debates. It is clear from those debates that the criteria for reservation are social and educational background, not economic,” Ananth said.

He also said that the Mandal Commission kept in mind the economic standing of a group, but only as one of the criteria among others.

The only instance in India where reservation has exceeded the 50% limit is in Tamil Nadu, where reservation of seats can extend upto 69%. However, Ananth said that the Tamil Nadu reservation system was implemented before the Indra Sawhney case, and the government made an exception for the state through a constitutional amendment.

“Even that system is in question as appeals against it is pending in the Supreme Court,” he said.

Also read: Quotas Are Not a Magic Wand to Resolve Problem of Discrimination in Universities

In 2011, when the UPA-II government cleared a 4.5% minority quota within the existing 27% OBC quota for government jobs and universities – which remained unfulfilled – the BJP went after the Congress hammer and tongs. That was a quota within quota formula and the UPA government had the Sachar committee – which had explored the extremely backward status of Muslims in detail – as back up.

The saffron party, however, blew up the “Muslim appeasement” rhetoric so much against the move that the state’s commitment towards affirmative action stood questioned.

Now, the Modi government do not have a single study to enunciate the backwardness of upper caste groups, yet the BJP leaders see the union government’s move to extend reservation to them as a historic decision. Except that the obvious contradictions in the saffron party’s political rhetoric is there for everyone to see.