Reservation: Is It Necessary In Present Times
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This Blog is written by Devleena Prasad from Symbiosis Law School, Noida. Edited by Uroosa Naireen.
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INTRODUCTION
For more than four decades the relevancy of reservation of the backward classes has been thoroughly contested and inquired. Right from the infamous case of MR Balaji [1] in the year 1962 to the recent ruling of the Supreme Court in the case of DMK [2], which verbally observed via virtual court hearing that right to reservation is not a fundamental right [3]. The idea of equality among equals seems far-fetched. The premise of reservation is to secure access in Government jobs, educational institutions and Parliament to the underprivileged sections of the society, comprising both of the depressed classes, namely Scheduled Class (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs) and the Economically Weaker Section (EWS) of the society. Reservations for SCs and STs were implemented right after independence to acknowledge and undo the injustice meted out to them. The inception of the Mandal Commission along with its recommendations and protests led to the reservation for OBC. The purpose of these reservations was two-fold, first, being, to provide them with a platform of opportunities to ensure equity and second, being, adequate representation to all communities. In the year 2019, the Parliament of India amended the Constitution in its 103rd Constitutional Amendment Act thereby including clauses 15 (6) and 16 (6), that provided 10% reservation to the economically weaker section of the society in public jobs and higher education. Upon consolidation, the extent of reservation quota accounted for 60%, leaving approximately 40% for the general quota, based solely on merit, except in cases where other reservations (domicile, military, differently-abled) are not in application. The big question here is, whether reservation is the righteous way to thread forward and constitute equity in the society? More than that, is it necessary in the present times?
HISTORY AND SIGNIFICANCE OF THIS DEVELOPMENT
To commence with, let us understand the origin of reservation. The primeval stratification of the social structure into an assertive caste system or Varna system, conceived a society, with occupational divisions. According to the Manusmriti, it is imperative to adopt the caste system to ‘maintain the order and regularity of society’. As the hierarchy goes, Brahmins who are believed to emerge from Lord Brahma’s head are regarded as the intellects and top the chart. Following which we have Kshatriyas, the ruling class; Vaishyas, the merchants, and Shudras, the craftsmen, followed by Dalits, the outcasts. The Brahmanical division emerged essentially out of the occupational backgrounds of people, however, the caste system gradually leaped into being the contrary. After widening its frontier from occupations to all aspects of life the caste system evolved into an inhuman and oppressive practice, depriving millions of individuals of basic human rights. This carried on for centuries until the flaw was finally acknowledged by the framers of our constitution, resulting in laws meant to uplift the degraded strata of the society. The revolution took its shape nearly around 1882 when Jyotirao Phule pioneered progressive thinking by breaking the shackles of age-old Brahmanical practices. It was in the year 1932 when Ramsay McDonald introduced communal award, to extend separate electorate to the depressed classes for the election of members in the provincial legislative assembly of British India, which served as the background for the Poona Pact, without which the constitution would never have existed. The Poona Pact led to a joint electorate between upper-class Hindus and depressed classes, where the seats reserved for the former were nearly twice as compared to the latter. The backwardness and under-representation of the depressed classes were pertinent and Poona Pact was a precursor to the rampant movement seen in independent India. Shortly after independence, the policymakers introduced Articles 15 and 16 in the Constitution of India in an attempt to undo the injustice meted out to SCs and STs and bring societal equilibrium. This was followed by the Kaka Kalelkar and Mandal Commission reports addressing the concerns of alienation of backward classes. The concerns were duly conceded, resulting in 27% reservation for OBCs. It was in the year 1992, when Indra Sawhney [4] case came to light, wherein the Court refused to acknowledge economic backwardness in addition to social and educational backwardness and adhered to its previous decision of 27% quota for OBCs thereby refusing to grant additional 10% reservation to economically backward, on the ground that they qualify for the ‘creamy layer’. The Court explicitly stated that the reservation criteria must not surpass the 50% mark. Much to our surprise, the 103rd Constitutional Amendment Act of 2019 provided 10% reservation in Government jobs and higher education to the economically weaker section of the society, bringing the 50% cap presently to 60%.
IMPACT
Owing to the ceaseless injustice done to the depressed classes, the idea of reservation was conceived as a ray of hope. Needless to say, the obvious intention of this system was to eradicate class differences, bridge the gap, and ensure equity. Reservation has truly resulted in a level playing field catering to the need for equity. Numerous individuals have succeeded in their educational and career pursuits due to additional aid. However, the gap remains unaddressed and so does eradication. If anything, the system of reservation has highlighted and perpetuated the class distinctions. The idea of caste and ethnic background has stirred up more than ever and is deeply rooted in society, contrary to the intention behind this system. It would be unfair to overlook the soaring vigilance of every citizen as well as the righteous treatment of every individual that has amounted as a result of this system. However, on the flipside, merit is disregarded. An average or dull student can be chosen over someone who is highly intellectual and meritorious as a result of reservation. What could have resulted as a highly skilled lawyer or a brilliant doctor or a compelling IAS, now results as a subpar version, in a few cases. Rich are getting richer and poor are getting poorer is turning into a tell-tale under reservation. With equal opportunities, individuals with broken households and backward communities realise their dreams of bringing an economic equilibrium throughout.
STATUTORY PROVISIONS
The statutes governing the right of reservation of the backward community, including SC, ST, OBC, and EWS, are as under:
Article 15 (4):
This clause was added by the Constitution (First Amendment) Act of 1951 as a consequence of the Supreme Court’s judgment passed in the case of State of Madras v. Champakam Dorairajan [5]. The clause states that notwithstanding any other provision the State shall make special provisions for the socially and economically backward class or Scheduled Castes and Scheduled Tribes.
Article 15 (5):
According to this clause, the State can make special provisions for socially and economically backward class or for Scheduled Castes and Scheduled Tribes in relation to admission in educational institutions, Government and/or Government aided and/or unaided by the Government, except minority institutions. It was added by the Constitution (93rd Amendment) Act of 2005.
Article 15 (6) & Article 16 (6):
These clauses were added by the Constitution (103rd Amendment) Act of 2019. Its constitutional validity is challenged and is pending before the Supreme Court slated to be listed for pronouncement of orders [6]. It is alleged to be in violation of the 50% cap in reservation and precedents, they establish 10% reservation for the economically weaker section of the society for their advancement solely based on economic criteria.
Article 16 (3):
As per the clause, notwithstanding any other clauses, the State shall make reservations in employment or appointment to the office.
Article 16 (4):
This clause ensures adequate representation of the economically and socially backward class and the Scheduled Caste and Scheduled Tribe.
Article 17:
This Article establishes the abolition of untouchability, by forbidding it and making it punishable under the law.
Article 39:
It directs the State to provide free legal aid, suitable legislation, and schemes to the economically weaker section of the society and ensures equality in all spheres.
Articles 330-342:
It explicitly states special provisions with regard to the economically and socially backward class and the Scheduled Caste and Scheduled Tribe.
CASE LAWS
State of Madras v. Champakam Dorairajan AIR 1952 SC 226
In this case, certain reservations made by way of a ‘Communal Government Order’ with regard to the admission of students in medical and engineering colleges were considered to be violative of Article 15 (1) of the Indian Constitution, even though the objective was to provide equal opportunities to the backward. It resulted in the inclusion of clause 4 in Article 15 by the first Constitutional Amendment Act of 1951.
M. R. Balaji v. State of Mysore AIR 1963 SC 649
The State of Mysore issued an Order for 68% reservation, which was regarded as unreasonable and violative. Furthermore, except for Brahmins all the other communities were included in the reservation scheme in two categories namely backward and more backward classes. This was struck down by Supreme Court in the given case.
Indra Sawhney & Others v. Union of India AIR 1993 SC 477
The infamous Indira Sawhney case dealt with economic backwardness and its reservation which was not admissible by the Court. The Court simply recognized social and educational backwardness with regard to reservation and denied from granting reservation to economic backwardness. Furthermore, they stated that reservation cap must not exceed 50%.
M. Nagraj v. Union of India (2006) 8 SCC 212
The concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation, and overall administrative efficiency was introduced for the formulation of reservation policy by State without breaching the ceiling-limit of 50% in reservation.
ANALYSIS AND CONCLUSION
Despite the formidable contributions of the reservation system, it has failed on many crucial levels. From the exclusion of merit to a caste bred society, reservation has acted as a barrier towards a progressive nation. The considerable upliftment is plausible but not at the cost of holding us back as a developing nation; this calls for a holistic and deep-seated solution than what is convenient and has been carried on for years. Implementation of groundwork and a detailed approach can lead to a healthy alternative to reservation. Reaching out to people on sub-regional levels than State level can dilute the issue to some extent. Additionally, the economic background should be given more importance and higher quota than the cultural background, as that would in no way lead to under representation of the community and would address the disparity in a better way. To ensure fairness, individuals belonging to rich and high-ranking families must be forbidden from invoking the reservation aids, despite their cultural background. The massive misuse and misinterpretation of the reservation system and its intention must be addressed. The flaws and loopholes have clearly overpowered its boon, demanding for alternatives and/or reforms.
REFERENCES
[1] R. Balaji v. State of Mysore AIR 1963 SC 649
[2] DMK v. Union of India WP(C) No. 507/2020
[4] AIR 1993 SC 447
[5] AIR 1951 SC 226
[6] Youth for Equality v. Union of India WP(C) No. 73/2019