Surjit S Bhalla: The logic of Indian lawmakers

IT DOESN'T MATTER

Truly original Indian distinction""lawmaking with the logic of half pregnancies.

The US constitution is 217 years old and has had 27 amendments. India and Malaysia both patterned their Constitutions on the US; India did it in 1950 and Malaysia in 1957. The number of amendments in Malaysia""42; the number in India: more than double that of Malaysia, and more than three times the US; 93 amendments, and still counting.

This band aid approach to law making most likely follows from the contemptuous attitude of our lawmakers towards the Constitution. If there are more than three amendments every two years, surely the Constitution is not even worth the admittedly low-value yellowed paper it is written on. This is manifestly so because on most important matters of social policy, the conveniently "ideological" (actually political) position is to Act with complete disregard for the facts.

The case of reservations illustrates our lawmakers' contempt for the Constitution extremely well. The Constitution guarantees the right of every citizen to equality. Article 14, equality before law, states: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India". Oops""but what about inequality, which is the result of centuries-old discrimination? Good point""we need to make an exception""so 24% reserved for SC/STs. But wait a minute""everybody is backward in India, except the Brahmins, so we need reservations for them. Good point again""so let us reserve an additional 52% of the Other Backward Castes (OBCs). The same principle""people have been discriminated against, so the same solution""reservations now for centuries-old discrimination. (But we can't have quotas for Muslims because we are secular Hindus.)

This adventurous lawmaking was a bit too much for the less adventurous logicians at the Supreme Court. So they decreed that reservations were constitutional, but such reservations should not exceed 50%. Where does the 50% figure come from? Can one be half-pregnant? No. Neither can one draw an arbitrary line at which past historical wrongs stop.

In case you are wondering where the 50% comes from, it most likely is derived from an earlier Supreme Court judgment (T Devadasan vs Govt. of India, 1964). This case related to the speed at which vacancies in government jobs were filled for SC/STs! In other words, no more than half the government jobs available could be filled by quotas in any given year.

Once on the slippery path of illogic, forever on that path. One amendment follows another, one injury with another, a smaller band-aid replaces a bigger one. The Tamil Nadu government wants 69% reservations: 30% backward classes, 20% most backward classes, 18% SCs and 1% STs. But the Supreme Court had ruled that quotas cannot exceed 50%. No problem: our lawmakers offer us the 76th constitutional amendment in 1994, allowing the Tamil Nadu government to operate with 69% quotas. Our quota mania is so maniacal that IITs are required to have quotas in each department. Given this logic, and given that everything is constitutional, and possible in India, what aspect of the Constitution says that there should not be OBC quotas in the Army? Or in Parliament? And why not have reservations for those with negative merit? For example, prisons. Why can't we have a constitutional amendment that prisons have to be filled in accordance with the proportions in the population""Sikhs 2%, upper-caste Hindus 10%, OBCs 52%, etc.

Given the legal and legislative furor over reservations for OBCs, one would have thought that the two law-making bodies, the Supreme Court and Parliament, would know some minimum facts: e.g. OBCs form what proportion of the population? The government claims it did its homework""the Mandal Commission found 52% of the Indian population to be OBCs.

The Mandal commission undertook considerable research to obtain this all important number. And it also emphasised, correctly, that it was defining OBCs on social (do others think you are a backward caste?) and economic (are you poor?) parameters. According to the Indian poverty line, 40-45% of the Indian population were absolutely poor in the early eighties.

The Mandal estimate for OBCs was greater than the all-India absolute poverty figure. A sure give-away of the fallacy of the Mandal number (given its own definitions of backwardness). But who is concerned with facts""not our chubby-clubby lawmakers in the Supreme Court and in the Indian parliament. But let us proceed with our lawmakers' logic. Fifty per cent are OBCs, and poor; 25% are SC/STs and poor; 12% are Muslims, and poorer. So 87% are dirt poor and deserving of quotas. There are 3% Sikhs, Christians, etc. So non-OBC non SC/ST Hindus are only 10% of the population! But if this is the case, then why the need for reservations, since even in India 10% of Hindus cannot occupy 100% of college seats, or 100% of organised sector jobs. There are just not enough upper caste Hindus to go around!

What is clear, therefore, is that a massive social policy in India was initiated with complete disregard for the simplest of facts""what is the percentage of the OBC population? Heuristically, as shown above, the percentage was more than far-fetched, but it had little consequence for debate or policy. But that was in 1990, when a demagogic Prime Minister, Mr V P Singh, was keen to last out more than a couple of years as PM. He got his just deserts when he was booted out in 1990""but not before he had done the damage for decades to come.

The excuse of lack of information is not available to the new demagogue""the Congress party. (The dictionary defines a demagogue as "a leader who obtains power by means of impassioned appeals to the emotions and prejudices of the populace".) In 1999-2000, for the first time, the National Sample Survey Organisation estimated that Hindu OBCs were only 33 % of the population, and most manifestly not 52%. So it is now the case that virtually every OBC Ram, Sita and Laxman will have guaranteed access to every college and job in the economy. So why not also in Parliament, the Army, and prisons?

ssbhalla@gmail.com