The Supreme Court has, wittingly or unwittingly, boosted India’s hierarchical caste system by giving its nod to a constitutional amendment, which permits reservation in educational institutions and government service on economic grounds. The issue came before the court through a batch of petitions challenging the validity of the 103rd amendment of the Constitution, which the Modi regime had enacted ahead of the 2019 Lok Sabha elections. It fixed a 10 per cent quota in school and college admissions and government jobs for economically weaker sections (EWS). The socially and educationally backward are excluded from the definition of EWS, ostensibly because there is an older reservation scheme for them. That makes them ineligible for economic reservation, howsoever poor they may be.

The five-judge Constitution Bench, which heard the matter, through four separate judgments, ruled 3-2 in favour of the constitutional amendment.  The concept of economic reservation and the court’s approval of it merit scrutiny in historical as well as current social and political contexts.  Dalit icon BR Ambedkar had begun his campaign against the caste system 95 years ago by symbolically burning a copy of Manusmriti, which had laid the foundations of a caste-based order. The Constitution framed under his leadership banned untouchability, an obnoxious form of caste discrimination, and declared all citizens equal, regardless of caste, religion or sex.

While the Constituent Assembly was at work, the Organiser organ of the Rashtreeya Swayamsevak Sangh, had argued there was no need for a constitution as Manusmriti was there. The RSS is the fountain-head of the Hindutva ideology. The name Manusmriti is derived from its putative author, Manu, whom ancient texts variously identify as son of Brahma, the Hindu deity of Creation, and swayambhu (self-created). More than 100 years ago, K.P. Jayaswal, a scholar, established through research that the actual author was one Sumati Bhargava.  In the 1917 Tagore Lectures delivered at the Calcutta University, he said Sumati had given his name at the end of every chapter, as was the custom in his time. His name was dropped later and authorship attributed to Manu to claim divine sanction for the work. Jayswal said Sumati produced the work to provide a legal framework for the new order established by Pushyamitra Sunga, the Brahmin army commander who had seized power after killing Buddhist emperor Brihadratha in 185 BCE.

 A recent Harvard genetics study showed that around that time endogamy became widespread in India. The rigid caste system that followed resulted in subjugation of a majority of the population. The empires that rose and fell subsequently did not have the courage to take on the social oligarchy.

During the British period, the Madras Presidency and a few princely states introduced reservation in educational institutions and government jobs for the victims of caste discrimination as an affirmative action programme. When the Constitution came into force in 1950 the pre-existing reservations were challenged in the Madras High Court on the ground that they violated its equality provisions. The High Court and the Supreme Court upheld the contention.

The government then amended the Constitution to assume the power to make special provisions for socially and educationally backward classes. Decades later the VP Singh government at the Centre extended reservation to socially and educationally backward all over India. The BJP had opposed the measure. The Supreme Court upheld the measure but limited reservation to one generation. It also set income limit on eligibility.  The current attempt to equate economic disability with caste-related social disability is disingenuous. The tried and tested global remedy for economic disability is a scholarship prograamme, accessible to all in need, not reservation.

 The apex court’s old and new verdicts have together created an untenable situation.  Those who were in an advantageous position socially and educationally for possibly 2,000 years –or a few hundred generations – are eligible for reservation on economic grounds. Those who were possibly denied education and government jobs for 2,000 years are entitled to reservation for only one generation. An “upper caste” family with an annual income of Rs800,000 is poor and eligible for reservation. A “lower caste” family with half that income is creamy layer and, therefore, ineligible.  Assuming a special provision for those with economic disability was justified, the government still erred in denying the benefit to the socially backward, who, according to official data, form more than 94 per cent of those below the poverty line. So did the court which failed to prevent a gross injustice to the poor.