The Indian Constitution promises social justice and permits the state to make special provisions in favour of the underprivileged to achieve substantive equality. Largely due to electoral compulsions rather than constitutional promises, successive governments led by various political parties have been coming up with reservation policies. The “appeasement” tag, however, has been deployed only in cases of reservation even for Muslim backward castes or pasmanda Muslims and not when Patidar, Gujjar, Jat, Marathas, EWS reservations were announced. The story of the inclusion of various castes in the Backward list or their transfer to the Scheduled Caste (SC) list tells a similar tale. Both Akhilesh Yadav and Yogi Adityanath, as chief ministers of Uttar Pradesh, announced the inclusion of 17 OBC castes in the SC list.

A closer look at the judicial response to reservation policies demonstrates two trends. First, our judiciary has not quite been quite supportive of such policies. It opposed reservation in promotions and introduced exclusion of the “creamy layer” (Indira Sawhney, 1992) brought in the 50 per cent upper limit (M R Balaji, 1963) and stuck down the “carry forward” rule (B N Tiwari, 1964). In fact, it has generally been more sympathetic to the cause of general candidates and emphasised “efficiency”. In several cases dealing with reservation for Muslim Backward Classes (BCs), the Court appears to lean towards the strict scrutiny test and undertook a microscopic evaluation of such “policies”. This even though the apex court had rejected similar procedures in other cases of affirmative action in Ashok Thakur (2008). The 211-page judgment of Justices Tapabrata Chakraborty and Rajasekhar Mantha of the Calcutta High Court has once again not only stuck down the inclusion of some Muslim BCs but it also tore apart the recommendations of the West Bengal State Backward Class........

© Indian Express