Reservation- Are They Necessary In The Present Times?
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This Blog is written by Palak Sinha from Symbiosis Law School, Noida. Edited by Ujjawal Vaibhav Agrahari.
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INTRODUCTION
The reservation system is all about providing the opportunity of representation to the disadvantaged groups that have suffered in times of historical events and even in the present time as well. The main objective is to reserve some amount of ‘quota’ or access to the seats in both public and private fields like jobs, educational departments and legislative institutions. These seats are specifically reserved for the educationally and socially disadvantaged groups of the society. For, it is believed that they are inadequately represented in the institutions of the community.
India’s policy of reservation has flourished over the period of time, beginning from the historical classifications in the society, primarily based on Varna system and even after the independence. We all are the citizens of this nation and are entitled to equal rights, opportunities in every field, be it education or jobs. But, Caste has always been an integral part of the Indian society, especially in determining one’s social position in the society.
It has existed in the country, since the time of pre-independence. The ruler of the Kolhapur princely state, Maharaja Ch. Sahu introduced it for the first time. He introduced this system in the favour of non-Brahmins and backward classes of the society. Then, during the British Raj, the reservation system was introduced by the Government of India Act, 1909. After, the independence of India, this mission was carried by Dr. B. R. Ambedkar for the welfare of minorities and the Backward Classes. The framers of our constitution felt that there must be an equal respect and equal dignified representation of all groups in the society. They believed that because of the caste system that existed in the pre-independence and historical times, the most vulnerable disadvantaged groups were the Scheduled Castes (SC’s) and the Scheduled Tribes (ST’s). After independence, the Constitution of India for the very first time mentioned these terms SC’s and ST’s as the under-represented groups in the nation building.
SIGNIFICANCE OF THIS DEVELOPMENT
In 1882, the Hunter Commission was appointed by Mahatma Jyotirao Phule, to meet the demand of free and mandatory primary education for everyone with all the proportionate representation in the government jobs. Then, in the year 1953, the Kalelkar Commission was established to access the causes of the socially and educationally disadvantaged groups of the society. The report was accepted for the SC’s and ST’s but was rejected for OBC (Other Backward Classes)’s recommendation. In 1979, the Mandal Commission and in 2003, the Sachar Committee were appointed to address the issue of economic and social status of different communities in the society. There were always divergent views on the reservation policy of India. People were of the belief that this just diverts the attention from an entire society as a whole to just few sections that are marginalized. Initially, this system was seen as the remedy for the adverse injustice and ill-effects of overall development policies by the government.[1]
These committees were commissioned mainly to promote the welfare of the minority groups of the society. These studies were necessary because there was no authentic data or information from relevant sources in the context of economic, political and social backwardness of classes in the society. Over the years, government has realized the need to ensure the equality for everyone and the gravity of this issue. They have been offering these opportunities to SC’s, ST’s and OBC’s so that they can turn over their development process and can make themselves capable of participating in the social affairs of the society as well as the country[2].
This advancement of the backward classes and minorities is the sole objective of the reservation policy. This ensures adequate representation of all disadvantaged groups of society equally. The objective is to get their participation in the decision-making process of the State. Hence, aiming at the empowerment of these communities in all fields in the society.
IMPACT
The impact of this Reservation policy is different in accordance with areas but has surely created rifts between the people of different castes and religions. The policy has always been subjected the widespread of political and social injustice. As a result of differing opinions, there are people who support this policy and some are just anti-reservationists.
“Lost rights are never regained by appeals to the conscience of the usurpers, but by relentless struggle… Goats are used for sacrificial offerings and not lions.” – B. R. Ambedkar
The supporters of the reservation policy consider it as a political necessity for the country. They believe that though it is true that this has undermined the quality of education. But, still has managed to help at least the under-privileged or the disadvantaged groups of the society in occupying the top positions in the world’s leading institutions. They agree that this policy is necessary to ensure social and political justice to the marginalized or the disadvantaged groups in the society. It is believed that it only slowed down the process of meritocracy and which is meaningless, if people are not first brought to the same level. Hence, the combination of wealth, income and their jobs are used to identify the real needy and disadvantaged group of the society. They believed that it is the real tool for the upliftment of women welfare in the society and is hence, an affirmative action in improving their condition.
“It is against the fundamental principles of humanity, it is against the dictates of reason that a man should, by reason of birth, be denied or given extra privileges.” – Mahatma Gandhi
The adversaries of the policy believe that this is responsible, for the rifts between the people part of the same society. It will be responsible for the divide of the entire country someday and it is just like introducing an internal partition all the way. They consider reservation to be the biggest enemy of meritocracy. They believe that these relaxed entry criteria are opposed to the promotion of merit-based education system. Also, the caste-based reservation only harbours the notions of castes differentiation in the society. Rather than weakening the pre-existing notions about caste classification, it just widens the gap to another level. They consider reservation as a tool to meet the narrow political ends. According to them, a carefully planned affirmative action scheme would be more beneficial in addressing the concerns of equality and causes of social injustice in the society. The allocation of reserved quota or seats just harbours discrimination, which is contrary to the ‘right to equality’ for everyone in the society. The poor or needy people from the forward or the self-sufficient groups in society are left behind as they have no social advantage over the rich people from the backward classes.
STATUTORY PROVISIONS
• Part XVI of the Indian Constitution deals with the reservation of SC’s and ST’s in the state and central legislatures.
• Article 14 of the Indian Constitution guarantees equality before law and the equal protection of laws for everyone. Whereas, Article 15 and 16 enshrined in the Indian Constitution allows the Indian government to reserve some seats for the educationally and socially backward classes in the society.
• The Constitution was amended by the 77th Amendment Act, 1995 and Article 16 was added with a new clause 4(A). It enabled the government to promote the reservation policies further.
• Additionally, Article 29(2) bars the discrimination against any citizen, with regard to the admission to any government maintained educational institution or receiving any aid from the government funds on grounds of caste, race etc. These articles do not bar the government from making any special provisions for the backward classes in favour of educational matters or jobs.
• The 81st Amendment Act, 2000 added the Article 16 clause (4B) enabling the government to fill the unfilled vacancies of the present year, reserved for SC’s and ST’s for the next following year. Which apparently nullified the cap ceiling of 50% reservation in total for them. Also, Article 243D provides reservation of seats for SC’s and ST’s in every Panchayat. Whereas, Article 233T provides reservation of seats for SC’s and ST’s in every Municipality.
• The Article 330 and 332 of the Indian Constitution provides specified representation of SC’s and ST’s in the Parliament as well as the State Legislative Assemblies by the means of reservation. The Article 341 and 342 define the terms ‘Scheduled Castes’ and ‘Scheduled Tribes’ with respect to any state or Union Territory.
• The 95th Amendment Act, 2009 was introduced for extending the period of reservation of quota for SC’s and ST’s and the representation of the Anglo-Indians in the Legislative Assemblies and Lok Sabha till 2020.[4]
• The court has always been of the idea that reservation is not a privilege but it might be in consonance with the Constitution permitting it as an alternative. Before 2019, the reservation was mainly provided on the basis of educational and social backwardness i..e caste. But, after the 103rd constitutional Amendment, the economic backwardness is also considered as the factor for basis of reservation. The Central Government of India introduced EWS (Economically Weaker Sections) Reservation system by this amendment. It secured the EWS candidates seats in government jobs and educational institutions.
• The Constitutional (108th Amendment) Bill, 2008 was initiated and was commonly known as the Women Reservation Bill for seeking one-third of all seats for women in the state legislative assemblies as well as Lok Sabha. These reserved seats were allocated on a rotation allocation basis for different constituencies. The reservation of these seats shall exist for 15 years’ period after the commencement of the Amendment Act.[5]
• The 126th Amendment Bill, 2019 of the Indian Constitution was initiated by the Lok Sabha members. The Bill amended the provisions relating to reservation of the Scheduled Castes(SC’s) and Scheduled Tribes(ST’s). Earlier, the Constitution provided the reservation for SC’s and ST’s in Lok Sabha and Legislative Assemblies of states but only for a mandated period of 70 years. This period was expired on January 25, 2020. This Bill extended its shell life by another 10 years. [6][3]
CURRENT RESERVATION ISSUE
Recently, a petition was filed by CPI, DMK and some other leaders to the Supreme Court, claiming that 50 percent of the OBC (Other Backward Classes)’s Aspirants for the Tamil Nadu Medical Colleges must get their quota reserved. The Supreme Court ruled about the ‘Right to Reservation’ not being a fundamental right. The Bench was headed by Justice L Nageswara Rao led to the decision that no one can claim the right to reservation as a fundamental right. Therefore, not giving the seats reservation or quota benefits cannot be construed as a violation of any kind of Constitutional rights. Justice Rao remarked “Right to Reservation is not a fundamental right. That’s the law today” [7]. The Court appreciated the standing off by the different political parties together for the plea but was still unimpressed by the cause. Hence, the Court did not entertain the plea.
On 11 June, 2020 the Supreme Court remained disinterested with such petitions and questioned the possibility of the rise of such petitions under Article 32 of the Indian Constitution, when there is no such fundamental right stating ‘right to reservation’. Article 32 only protects against the violation of any fundamental rights. Hence, the Court denied the plea challenging the Centre’s decision of not granting 50% reservation to the OBC’s in the state of Tamil Nadu in medical colleges.
CASE LAWS
Jarnail Singh and Ors. vs Lachhmi Narain Gupta and Ors. (2018 SCC 1641) [8]
Bench: Former Chief Justice of India Dipak Misra, Justice Kurian Joseph, Justice RF Nariman, Justice SK Kaul, Justice Indu Malhotra
Issues
1) Whether the case M. Nagaraj v. Union of India (Nagaraj) needed reconsideration or not?
2) Nagaraj verdict held that before the Scheduled Caste and Scheduled Tribe candidates can be promoted, the states had to prove by “quantifiable data” that they were indeed part of class “backward”?
3) Whether the ‘creamy layer’ among SC’s and ST’s should be barred from obtaining promotions through reservations or not?
Rule
Article 16 (4A) and Article 16 (4B) of the Indian Constitution were introduced by the 81st Amendment that granted the government to line reservation in promotion when breaching the set ceiling of 50% on regular reservations. The Amendment allowed the government to move forward with the unfilled vacancies in the next following year. It states that nothing can prevent the government from creating any special provisions for these communities of the society. Also, Article 14 of the Indian Constitution enshrining the principles of equality to all and equal representation for all in society.
Application
The judgement held that Article 16 (4A) and 16 (4B) are valid and they allow the government to promote the reservations in promotions. It has surely neutralized the benefit by applying the creamy layer into the restriction layer. It held that failing to include the creamy layer exclusion would just violate the principle of equality. The Court held that doing so ensures equality for both the Backward Classes and the Forward among the Backward Classes as well.
Conclusion
The Court held that there is no need for reconsideration of M. Nagaraj V. Union of India (2006) 8 SCC 212 judgement (7-Judge Bench). This judgement modified the Nagaraj judgement with respect to term ‘further backwardness’. In Nagaraj, the Supreme Court held that those states that chose to grant reservations in promotion, must collect quantifiable data to demonstrate the current economic stability as backwardness of the SC/ST in promotion.
But, in this case the further backwardness condition is contrary to the Indra Sawhney [9] case (AIR 1993 SC 477) with 9-Judge Bench as it doesn’t grant the permit to collect this quantifiable data as indispensable for granting reservation in promotions. This modified judgement has filtered the creamy layer basis for promotions of SC/ST employees. Justice Nariman concluded that the object of reservation is the moving forward status of the Backward Classes on equal basis. The Bench clarified that the rule for states that inadequacy of the representation has to be specific and not in proportion to the entire/total population of the SC/ST in the state.
Analysis
The reservation benefits that flow vastly in the favour of the disadvantaged and the marginalized groups of the society is justifiable. Though this system may be beneficial for the minority and disadvantaged groups of society but not every minority has a history of poor financial background and same as, not all general or upper castes are from good financial background. There are several cases reported, where the people have faked certificates and submitted them for availing the advantages of government provided funds and aids meant for the backward classes and the disadvantaged groups of the society.
Reservation is the tool against the social injustice and oppression against certain classes. It helps in social upliftment of the disadvantaged groups of the society. But, it is important to ensure that the relief is been provided by all fair and practical means, to only help the existing needy in every community through reservation. However, today reservation is what seems to people as a vote bank politics for winning the elections. This approach can hinder the growth and development of the country in all aspects.
CONCLUSION
The issue of reservation system has remained the integral cause of disagreement between the supporters and the opponents of these policies. It has failed to impress every individual in the society but surely has won some support. The sections that have no reserved segments have opposed this system, while the neediest segments having reserved segments have hardly explored their benefits from the policy. There are few upper/forward castes that still suffer the poverty or illiteracy. However, the reservation can’t be considered totally irrelevant or discriminatory. As the disadvantaged groups have suffered in the past and are exploited even today.
The need for the hour is to spread the awareness, about these benefits to the reservation class as they are hardly aware of the capabilities of this policy. The requirement should be, the filter of reservation basis should be unbiased and should be capable of truly identifying the economically, socially and the educationally deprived groups in the society. This will surely contribute in bringing revolutionary changes at the grass-root level in all fields.
Reservation is undoubtedly good, as far as it is considered as the method for positive discrimination which benefits the downtrodden and the disadvantaged groups of the society. But when it tends to harm the justice in society then, it shouldn’t be allowed to ensure privileges for some people, at the cost of others. So, before extending any provisions of the reservation policy, it is mandatory that the entire policy must be examined briefly. Also, its benefits in long term and over the years have to be gauged first. Thus, instead of providing reservation to all background classes, the government has to create provisions for checking their financial stability first and according to that their eligibility must be decided. This will ensure proper distribution of government funds resources and will ensure equality and equal opportunity for all.
REFERENCES
https://shodhganga.inflibnet.ac.in/bitstream/10603/20014/7/07_chapter%20ii.pdf
https://www.prsindia.org/node/843780/chapters-at-a-glance
Ninety-fifth Amendment of the Constitution of India. (n.d.). Retrieved from wikipedia: https://en.wikipedia.org/wiki/Ninety-fifth_Amendment_of_the_Constitution_of_India
The Constitution (One Hundred and Twenty-Sixth Amendment) Bill, 2019. (n.d.). Retrieved from prsindia: https://www.prsindia.org/
The Reservation policy of India: needs to be amended. (n.d.). Retrieved from legalservicesindia: http://www.legalservicesindia.com/
Today, I. (n.d.). Reservation not fundamental right: Supreme Court rejects petition seeking OBC quota in Tamil Nadu medical colleges.
Wikipedia. (n.d.). Retrieved from https://en.wikipedia.org/wiki/Reservation_in_India
Very informative. Very precise. Very helpful.
Wonderful article, well written Palak.