Falling over Backwards

Title: Falling over Backwards – An Essay on Reservations and on Judicial Populism

Author: Arun Shourie

Publisher: Rupa & Co, 2009 (First published 2006)

ISBN: 9788129109521

Pages: 378

When Prime Minister Vishwanath Pratap Singh announced that he was instituting reservation for Other Backward Castes (OBC) in government service in 1990, it was a bolt from the blue. Nobody had seen it coming and all hell broke loose as the country plunged into a series of violent protests, in which a few young men publicly immolated themselves to vent their anger at the supposed loss of jobs for forward castes. The backward classes which constituted 74 per cent of the population and the progressives among the upper castes welcomed the initiative, while quite understandably, a section of the people opposed it tooth and nail in parliament and law courts. The Supreme Court finally delivered its verdict in 1993. It upheld the constitutional validity of reservation for OBCs, but ruled that the well-off among them, christened the Creamy Layer, should be removed from its ambit. The country still follows that principle, while sporadic opposition to reservation continued. By the beginning of the present century, a new trend became noticeable. The upper castes also started the clamour for labeling themselves backward and accord reservations to them. The Jats have almost succeeded in getting what they wanted, while the Patidars of Gujarat are currently on the war path. Their logic is clear. With every judicial avenue closed for repealing reservation, and the political route impossibly difficult as the physical number of backward castes are far more numerous, the only thing they can hope for is to crash the gates, register all forward castes as backward and thus defeat the very purpose of granting reservation. Arun Shourie was the editor of the Indian Express when the Mandal agitation roiled the country. His fiery editorials and polemical essays added fuel to the fire. Shourie still retains his strident tone, even after all these years. This book contains his observations on reservation and the judicial support it had received. Terming those judges who ruled in its favour as activists and revolutionaries, he spits venom at the so-called judicial populism.

Shourie’s attack on the backward castes of India runs on all fronts. He treats them as non-entities, people with no talent to run government institutions, but who wrested concessions from pliable politicians owing to their electoral muscle. He quotes a letter Prime Minister Nehru wrote to state chief ministers in 1961 in which he reacted strongly against reservation which leads to inefficiency and second-rate standards. If we go for reservations on communal and caste basis, we swamp the bright and able people and remain second- or third-rate. Nehru adds that this way lays not only folly, but disaster. The parting shot is Nehru’s rhetorical question on how we could build the public sector or indeed any sector with second-rate people. Shourie builds on where Nehru has left off by questioning even the existence of backward castes. His argument is that the consciousness of caste came into being only when the British started counting castes in decennial census. Centuries of untouchability and caste oppression are just wished away by the author, who then takes the next arrow from the quiver. Article 16(4) of the Constitution of India, on which the entire scheme of reservation rests, envisages reservation on appointments and posts in favour of any backward class of citizens. The statute uses the term ‘class’ instead of ‘caste’ and about a quarter of the book is dedicated to push this idea down the readers’ throats. Several judgments of the apex court had clarified this issue long back. They held that the term ‘classes’ mentioned in the constitution indeed referred to ‘castes’. This is quite logical if a bit of thought is applied to the matter. The framers of the constitution wanted to reserve jobs for the backward sections lagged behind others. But, if they specifically mentioned castes in the constitution, that’d have been valid only for that period, as there is every chance that the plight of the backward castes might improve in the future and the need for reserving seats for them might become obsolete. Another group – need not exactly be a caste – may become backward by then and the provisions of this enabling clause in the constitution can be used to provide succor to them. We want the Constitution’s provisions to be applicable for a very long time to come. May be it is with this intent that the makers of the constitution used the generic term ‘class’ instead of the very specific ‘caste’? It is for the legislature to decide which group is backward and the duty of the judiciary is to review it. Both have done their jobs well, but the author accuses them of populism.

The book includes some prescient remarks that highlight the shrewdness of the author. He rightly surmises that if individuals and groups get rewarded on the basis of their being different from the rest, leaders will foment a politics that exacerbates the difference (p.33). That such an insightful scholar let go of absurd notions as well may surprise the readers. The hypothesis that castes in British India were in a state of flux is one such, especially with exodus of rural folk to the cities. Shourie’s point is that ‘in towns, it was quite easy for a low-caste person to claim a higher caste without any fear of detection’ (p.56). So, that’s it! The only way out for a person of backward castes to gain some dignity is to masquerade as a high-caste one in a far-off town! Elimination of the comparatively better off among the downtrodden communities has been a strong demand of all those who opposed reservations. Unfortunately, the passion of petty jealousy which underpins this idea remained unnoticed in the judicial review and the court’s reason for exempting the creamy layer was that reservations were to be for a class. To be a class, the group must be homogeneous. When some in it are clearly different from the others, it loses the character as a class. Besides, unless these advanced persons are excluded, they’d hog all the benefits that legislation may seek to provide to the backward classes. But, eliminating such a big chunk of eligible people from the purview of reservation has made it partly ineffective. It was reported recently that less than half the seats reserved for OBCs were actually filled in the last quarter century in which reservation was in place.

Shourie treats the backward castes as subhuman morons as he pities the condition of the administration where half the posts are manned by such people having no qualifications for the job. His contemptuous duplicity fails to mention that all candidates – irrespective of whether they are backward or not – must qualify the basic criterion say, a degree. There is no relaxation to the backward castes in that. It is only in the screening process that some allowance is made. However, screening is not an essential part of selection. If the total number of candidates is less than or equal to the number of vacancies, everyone would be selected without further screening, provided they have the prescribed academic qualifications. Can we say that people appointed thus are not qualified enough or not talented enough? Shourie himself admits that not enough candidates from reserved categories are found. According to his own data, in 1992, the medical officers of UP from SC/ST communities comprised only 6 per cent of the total, whereas 20 per cent was earmarked for them as reservation. Most of the quota remained vacant, but the author fumes over promotions granted to them. Shourie breaches his leash and jumps at the judges with foaming mouth as he accuses them of populism and playing into the hands of opportunist politicians. His choicest invective are reserved for Justice V R Krishna Iyer.

The book is good reading for those who want to follow the court verdicts against finer aspects of reservation and how the legislature bypassed it by amending the constitution. However, finding the useful information from the sea of irrelevant rant will be a herculean task. Many points and ideas are needlessly repeated with detailed nitpicking of court rulings and judgments reproduced verbatim. It is plain boring at such times. The book is written in a propagandist style with absolutely no wit or humour. The author is always in a state of rage right throughout the entire text. This can be expected when you feel that what you are saying is not convincing to the people who hear it.

The book is not recommended.

Rating: 2 Star