A petition at the Madras High Court by DMK leader, RS Bharthi and the court’s directions ordering notice to the central government today makes sense to draw parallels with the first of the petitions against reservations.
The case, Champakam Dorairajan vs state of Madras, one of the first writ petitions after the constitution came into force, also happened to be decided first at the Madras High Court.
Well. The parallels end with this. And all else that followed then were in the opposite direction and this includes the basis of the challenge. Champakam Dorairaajan, belonging to the upper caste, went to the court then, against reservation of just one seat for applicants from among the scheduled castes in the Madras Medical College.
Provision for this reservation was in vogue since 1931, based on a government order that year, and was challenged by her on grounds that what was good in law in the pre-constitution era was bad with the coming of the constitution. The reservation scheme, it was held, was violating the right to equality guaranteed by Article 14 of the constitution.
India, then, was under the interim government headed by Jawaharlal Nehru. This and other judgments leading to the quashing of land reforms legislations haunted the cabinet. And they did not wait for the general elections to be over and Parliament come into place to amend the constitution.
The constitution (first amendment) act, 1951, was moved, debated and passed by the constituent assembly (called to act as Parliament) and thus came Article 15(4) of the constitution to annul the Madras High Court’s decision (also upheld by the Supreme Court) to save such reservation for the socially and educationally backward classes (SEBC).
The amendment too was challenged and the Supreme Court upheld the constitution as amended and making sure that the scheduled castes and tribes enjoyed reservation in educational institutions and in jobs. The doctrine behind this was that it was imperative for the independent state to ensure a social transformation and that reservation was the key to it and all other measures as complimentary.
Since then and until the a constitution bench held reservations for the SEBCs as constitutional and that caste is indeed a valid category to measure social and educational backwardness in the Indra Sawhney vs Union of India (also known as the Mandal judgment), the principle remains central; that reservations are not a poverty alleviation programme and instead meant to ensure social justice as enshrined in the preamble to the constitution and elsewhere.
It is indeed incidental that the Madras High Court has been approached and that too by the DMK, through one of its functionaries, against the constitution (103
rd amendment) Act, 2019. All the ingredients, in this case, are the opposite of what happened in 1950.
But the philosophical foundations on which the petitioner herein has built his case have been drawn from the paradigm that was set when the Republic was just born and also on legal and jurisprudential pronouncements that hold reservations as a tool for social and political justice. This, indeed, is what the constitution (103
rd amendment) act, 2019 has tried to overturn and distort.
It is likely that the court is approached, by the union of India, seeking more time to reply to the notice when the matter comes up next on February 18, 2019. The learned judges may also grant it. The matter will drag on for a while and certainly drag on beyond May 2019. It is even likely that the DMK, along with some others who think the same way as MK Stalin’s party on the constitution (103
rd amendment) act, 2019 will be part of the new regime in New Delhi by then.
And that is when the fate of the constitutional amendment to reserve 10 percent of jobs in government and educational institutions for the economically weaker among the upper castes will come up for serious arguments before the Madras High Court. That will be when those parties that voted for the bill and yet will be on the other side then, in other words on the side of the government then, will be forced to take a call and decide what shall be the government’s reply to the notice from the Madras High Court on this case by RS Bharathi.
Well. Bharathi, then, may even end up in the Lok Sabha as things look favourable for the DMK in Tamil Nadu in May 2019; and Bharathi is a veteran who has been fielded in the past as the DMK’s candidate and end up contesting from one of the Lok Sabha constituencies in or around Chennai in the coming elections! Interesting days ahead.
The tragedy, in the meanwhile, is that the law to reserve 10 percent to the poor among the upper castes, based as it is on specious and un-constitutional premises, will remain notified and just that. There are hardly any jobs vacancies in the government that are going to be filled up in such short time as between now and a few weeks from now when the Election Commission of India announces the schedule for the 2019 Lok Sabha elections. This will bring the Model Code of Conduct into force. Neither will jobs be notified then nor vacancies filled up.
The point is the government played a fool on the people of India by rushing in the constitution (103rd
amendment) act in the last session of Parliament. Such play of cynical games ought to have been desisted at least with the constitution of India.
V Krishna Ananth is a Professor of History at SRM University, AP.