RESERVATION POLICY IN INDIA: CONFLICTING CLAIMS OF EQUALITY AND MERIT

Taarkik Legal

The framers of the Indian Constitution were from various casts and communities, ranging from the princely states to the poor section of the society. The Constituent Assembly which was constituted by the election, tried its best accommodate the views of everyone. In that society there was huge division among the society and that also included the discrimination of the weaker section of the society. To uplift the weaker section, there was a common consensus among the framers of the Constitution to provide for a casted based positive discrimination

Reservation is a branch of compensatory discrimination in form of a policy or program whereby Constitution guarantees participation of the neglected communities of a society by keeping quotas for them in educational institutions, public employments and legislative bodies. The purpose of giving reservations to these underprivileged groups is to compensate for any past or present atrocities, injustice or discrimination of any type against them. A direct application of compensatory discrimination can be seen in reservation of seats in educational institutions, reservation of vacancies in public service, and preference to such groups in government contracts.

India’s affirmative action policy, more popularly known as “Reservation Policy”, is authored by the provisions in the Indian Constitution which was adopted in 1950, though its initiation at the country level dates back to the early 1930s.[1]

Jeremy Bentham had propounded the theory of Utilitarianism which meant the greatest good for greater number, and that is being reflected by the Reservation polity of India. The reservation policy of India has seen a remarkable development for last 70 years ranging from upliftment of the weaker section to the suppression of the other section of the society. This policy has definitely done some justice but some injustice as well.

The reservation policy has three important flaws. First, it has a discriminatory bias alongside Muslims who do not advantage from such policies. Second, it emphasizes caste rather than income or wealth: The goal of reservation in India has been to bring about an improvement in the welfare who, historically, has been economically and socially depressed. But, in arriving at this judgment about who should be eligible for reservation, the criterion has been a person’s caste rather than his income or wealth. Consequently, groups belonging to what Article 15 of the Indian Constitution calls “socially and educationally backward classes” have benefited from reservation even though, in practice, many of these groups could not be regarded as “backward”. This has meant that many of the benefits of reservation have been captured by well-off groups from the depressed classes while poorer groups from the depressed have failed to benefit.

[1]  B.R. Ambedkar, The Hindu Social Order – Its Essential Features, in Vasant Moon, 3 Dr. BabasahebAmbedkar – Writings and Speeches, 95-115 (1987).

From ancient past the Hindu society is divided into four Varna as defined in the Rig Veda the first and the most important set of hymns of Hindu mythology which were Brahmins, or priest, Kshatriyas the warriors, The Vaisyas, the farmers and artisans, and the last were the Shudras also known as the untouchable. But soon it became an instrument to divide the society on caste-basis, creating various walls between different sections of the society. It is for the up lifting of these backward caste people in 1882 Mahatma Jyotirao Phule put forward a demand of free and compulsory education for along with proportionate representation in government job.

  • But the first step toward reservation was taken in 1902 when the then Maharaja of Kolhapur, Chatrapati Sahuji Maharaj introduced reservation in favor backward class in order to eradicate poverty and give chance to participate in the state administrative function, this notice by the Maharaj was the first Government order in the history of India which gave 50% reservation in service to backward classes in the state of Kolhapur. Later on in 1908 reservation was introduced by the British Government for those caste and communities which does not have a proper share in the administration.

The legal origreservation could be traced back to Government of India act 1919 which came when the British were whole heartily engaged in World War 1. During this time though the British were primarily focusing on the war but they passed significant and important legislation which aimed at development of India. The Act of 1919 not only introduced reform for the government institution but also addressed many issue relating to minority and established communal electorate. This system of communal electorate was hugely criticized by Montague-Chelmsford as a system that could be a hindrance to the self-development policy, but since the Muslim already had a communal electorate through the Minto- Morley reform of 1909 and, therefore, they found it unfeasible to take away the separate electorates of Muslims.

After 1919 Simon commission was set up to evaluate the provision of Montague – Chelmsford. The representative of Simon commission proposed for combining separate electorates and reserving seats for depressed classes and demand for the wider franchise was there as the economic, educational and social position of these depressed classes did not allow them to vote properly. To check validity of this proposal and the method of incorporating them into a constitution, Round Table Conference was convened in London in 1931. But due to very high criticism from the congress and it leader the issue of minorities remained unsolved

Then after the Communal Award came into force wherein the Prime Minister of Britain announced communal award to the depressed class and to the minorities and also assigned number of seats to such communities which were to be filled by election from special constituencies in which voters belonging to the depressed classes could only vote. Such action from the British government was strongly opposed by the leader of India National Congress but Dr.BR Ambedkar and minority group strongly supported it, as a result of this Poona Act was enacted in 1932 and it stated a principle of single general electorate for each of the seat in British India. The provisions of Poona Act were approved in The Government of India Act, 1935 where reservation of seats for depressed classes was allotted.

DEVELOPMENT OF RESERVATION POLICY IN INDIA

The Constitution of India under Article 14 gives equality before the law or the equal protection of the laws within the territory of India. However, we have seen that there have been various castes and communities in the past which were treated as depressed and downtrodden in the society. So in order to uplift them, the Constitution of India under Article 15[1] and Article 16[2] gives the permission and liberty to the Parliament and the State Legislature to frame certain rules and regulations and make reservations for such communities and the weaker sections so as to

[1]Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for women and children

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Schedules Castes or the Schedules Tribes insofar as such special provisions relate to their admission to educational institutions including private education institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.

[2]Article 16 – Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.bring them into the main stream. This can be analyzed through report of the Commissions and various judgments by the Supreme Court.

Kalelkar Commission

By virtue of Article 340, the First ever commission on Backward Classes was being set up by the President’s order on January 29, 1953 Kaka Kalelkar as its chairmanship.

Grounds for which the Commission was established

To formulate the criteria that would be adopted for considering that any section of the people within the Indian Territory along with the Scheduled Caste and Schedule Tribe as socially and educationally backward classes (SEBC); on the basis of such criteria a list of such classes was to be prepared.

To look into the conditions of that socially and educationally backward classes.

To formulate the steps that could be taken by the Central or the State Government to remove such difficulties and also to improve the economic condition.

To inquire such other matters as the president may hereafter refer to them.

To present to the President of India a report of setting out the facts as found by the committee and making such recommendations

To identify the socially and Educationally Backward Classes (SEBC), Kalelkar commission had adopted the following criteria:

The low social position in traditional caste hierarchy of the Hindu society

The lack of educational advancement in among the major section of a community.

The inadequate or no representation into the government services..

The inadequate representation in the field of commerce, industry and trade

Kalelkar Commission had submitted its report about the SEBC on March 30, ‘1955. The Commission prepared a list of in total a 2,399 backward castes or communities for the whole nation and from which a number of 837 was been termed in as the ‘most backward’.

Recommendations of the Commission

Relating social backwardness of a class to its low position in the traditional caste hierarchy of Hindu society

All women as a class shall be treated as ‘backward’

There has to be a provision of reservation of 70 per cent seats in the entire professional and the technical institutions for qualified students of backward classes

 

The minimum reservation of vacancies in all the government jobs and services and all the local bodies for other backward classes shall be as follow:

  • class I = 25 per cent;
  • class II = 33½ per cent;
  • class III and IV = 40 per cent.

Mandal Commission

The Janata Party Government under the leadership of Mr. Morarji Desai went on to set up a second backward classes commission on January 1, 1979. This commission was famously known as the Mandal Commission; with its chairman was B. P. Mandal. It had submitted the report in December 1980. 

Terms of the Mandal Commission

To determine the basis for defining the SEBCs

To recommend the steps that could be taken for advancement of SEBC.

To examine the desirability and for making any provision for the reservation of appointments or posts.

To present a report setting out the facts.

Recommendations of B.P. Mandal Commission

It was the Reservation for Schedule Castes and Schedule Tribes in the proportion to their population which is around 22%. But as there is also a legal obligation to keep reservation under Articles 15(4) and 16(4) of the constitution below 50%, the commission had recommended a reservation for OBCs would be 27%

The Candidates who belong to the OBC category would be recruited based on merit in an open competition and it should not be adjusted against the reservation quota of 27%.

The reservation should be made applicable for promotion quota at all levels as well

There shall be a relaxation in the upper age limit for direct recruitment which should be extended to the candidates of OBC as same as that of SCs and ST

The reserved quota shall be remaining unfilled should be carried forward for a period of 3 years and thereafter it shall be de-reserved

A roster system for each category of posts should be adopted by the concerned authorities like that of the SC and ST

All the affiliated colleges and universities should be covered by this scheme of reservation.

An Analysis From ChampakamDorairajan To Ashok Kumar Thakur

The word ‘discrimination’ in Art 15(1) involves an element of unfavorable bias. The use of the word ‘only’ in Arts Art 15(1) and Art 15(2) connotes that what is discountenanced is discrimination purely and solely on account of any of the grounds mentioned. Articles 15(3) and 15(4) constitute exceptions to Arts 15(1) and Art 15(2). According to Art 15(3), the State is not prevented from making any ‘special provision’ for women and children. The scope of Art 15(3) is wide enough to cover the entire range of state activities including that of employment.

Article 15(1) would have come in the way of making favoring positions for backward sections of the society. Therefore, Article 15(4) was added to the Constitution by the by way of first amended act in 1951. This amendment was reaction to the judgment of State of Madras v. ChampakamDorairajan[1] where Madras Government allotted seats in State medical colleges based on community-wise classification. The Supreme Court struck down the classification as being based on caste, race and religion.[2] Article 15(4) confers only discretion and does not create any Constitutional duty or obligation.[3]

Who are Backward Classes?

A major difficulty raised by Art 15(4) is regarding the determination of who are ‘socially and economically backward classes’. Art 15(4) lays down no criteria to designate ‘backward cases’; it leaves the matter to the State to specify backward cases but the courts can go into the question whether the criteria used by the State for the purpose are relevant or not.

In M.R. Balaji v. State of Mysore[4],the Court held that caste could not be the sole criteria or a predominant factor for ascertaining whether a particular class was backward class or not though it could be relevant test. Backwardness under Article 15(4) must be socially and educationally and social backwardness, in the ultimate analysis, was the result of poverty.

In Chitralekha v. State of Mysore[5], an order by the Government of Mysore classifying socially and educationally backward classes on the basis of economic conditions and profession was declared to be valid by the Court. Here, caste was ignored for this purpose.

In P. Rajendran v. State of Madras[6], the Court upheld caste to be thepredominant basis for the test of backwardness. In State of U.P. v. PradipTandon[7], the Court refused to accept the test of poverty as the determining factor of social backwardness. It held that poverty is not the common trait of rural people alone; it is widespread in India, and to take poverty as the exclusive test would mean that a large population in India is held backward.

A Government order excluded the candidates belonging to socially and educationally backward classes from claiming the benefit of reservation if the aggregate annual family income wasRs. 10,000 or over. The order was challenged by a candidate belonging to the backward class, but who was denied the privilege of preferential admission to medical college because family income exceeded Rs. 10,000 annually. The Supreme Court emphasized in K.S. Jayasree v. State of Kerala[8], that social backwardness is the result of caste and poverty. Both factors are relevant for determining the backwardness. But neither caste alone nor poverty alone will be the determining tests. Occupations, place of habitation may also be relevant factors for the purpose.

Reservation in Admissions

In Dr. Neelima v. Dean of PG Studies A.P. Agriculture University, Hyderabad[9], it has been held that a female of high caste Hindu marries a person belonging to SC is not entitled to take the benefit of reservation under Articles 15(4) and 16(4).

In State of Madhya Pradesh v. Nivedita Jain[10], the Supreme Court upheld the validity of an Executive Order which had completed relaxed minimum qualifying marks in Pre-medical Examination for selection of students to Medical Colleges of the State in respect of SCs and STs Candidates. It is neither unreasonable nor violative of Article 15(4).

In Pradeep Jain v. Union of India[11], it was held that no reservations inexcess of 70% on the basis of residence could be reserved in at the MBBS level.However, up to seats at this level could be permitted on institutional basis.

In Dr. PreetiSagar Srivastava v. State of Madhya Pradesh[12], the Court opined that for selecting students to the super specialty courses in medical and engineering merit alone can be the criteria.

Reservation in Employments

In T. Devadasan v. Union of India[13], the Supreme Court struck down the ‘carry forward rule’ as unconstitutional on the ground that the power vested in Government under Article 16(4) could not be exercised so as to deny reasonable equality of opportunity in matters of public employments for members of classes other than backward. Thus, to avoid unduly interference with the legitimate claim of other communities, the Court held that the reservation ought to be less than 50% but how much less would depend upon prevailing circumstances in each case.

In State of Kerala v. N.M. Thomas[14], the Court held that preferential treatment to SC/ST employees by allowing them an extended period of 2 years for passing tests for promotion from other classes of employees was a just and reasonable classification.

The scope and extent of Article 16(4) was thoroughly examined by the Supreme Court in the case of IndraSawhney v. Union of India[15], popularly known as the Mandalcase. The majority opinions are summarized as follows:

  • Backward class of citizen in Article 16(4) can be identified on the basis of caste and not only on economic basis.
  • Article 16(4) is not an exception to Article 16(1), it is an instance of classification.
  • Backward classes in Article 16(4) are not similar to as socially and educationally backward in Article 15(4).
  • Creamy layer must be excluded from backward classes.
  • A backward class of citizens cannot be identified only and exclusively with reference to economic criteria.
  • Reservation shall not exceed 50 percent.
  • Reservation can be made by ‘Executive Order’.
  • There shall be no reservation in promotions.
  • Disputes regarding new criteria can be raised only in the Supreme Court.

In Ashok Kumar Thakur v. Union of India[16], the Supreme Court held that the Constitution (93rd Amendment) Act, 2006 providing 27% reservation in admission to OBC candidates in higher educational institutions like IITs and IIMs is constitutional. However, the Court left open the question of reservation to this category of citizens to private educational institutions. The Court however, held that the benefit of reservation cannot be made available to creamy layer candidates. Also, the creamy layer requirement will not apply to SC/ST candidates.

IMPACT OF RESERVATION POLICIES ON EMPLOYMENT & EDUCATION

From the above discussion, it is evidently seen that the Apex Court has indeed struggled to find a clear and uniform criteria so as to identify the socially and educationally backward classes within the purview of both Article 15(4) and Article 16(4). This has led to a gap in the system since it has resulted in taking of undue advantage of the benefits so conferred, by the average person. But isreservation really necessary? Before answering this question, let us look into the pros and cons of reservation system in India.

The Reservation policy was included in the Indian Constitution by the makers of the IndianConstitution to undo the damage that was being done to the weaker sections of the society orto uplift the down trodden sections of the society. But since the Independence we have seen thatall the major sectors where the reservation is being given has not only uplifted the downtrodden but the policy has also created ruckus in the equilibrium. The Reservation policy ofthe government has been successful as we can see that in many of the top posts there arepeople from lower castes or communities and are enjoying the powers, but at the same time it can be seen that many undeserving candidates who have failed to secure the appreciablemarks have also made into the list.

In the educational institutions like IITs, NLUs, where there is reservation, the quality of education is being degraded year by year as the students who have low caliber get into thosecolleges and perform poorly. This not only causes problems to the colleges but also to thestudents. They cannot match the level of the other candidates. If a student had secured 70%marks to clear the exam and the same exam is cleared by a student who has secured only25%, any person can say that the person securing 70% has an upper hand. But the reservationpolicy has kept both the students in the same platform; this ultimately takes away the share of the deserving candidate and gives it to an undeserving candidate.

The same problem is with the employment, the deserving people’s share is been taken awayand because of that the condition of government institutions have been degraded today.

The Government is working towards a welfare society by focusing on the development of particular sections of the society. For what we believe, this was a condition necessary a few years ago. Now that there has been an upliftment of majority of the weaker or downtrodden sections of the society, there is a need to revise this reservation policy. This need arises basically because of two reasons: Firstly, this is creating a division between backward classes where the upper classes among them are taking all the benefits and the lower classes are at the same place where they started from. Secondly, this is hampering the overall development of the country as there are now various undeserving candidates at the top posts with the aim not to work for the betterment of the country but to make the people payback for the oppression that have been suffered by them.

Originally, the reservation policies were to be implemented for a period of 10 years but its term is being extended continually. For once the contention that the SCs or STs belong to the weaker section is admitted, what we believe is that now the policy has to be relooked upon. When the weaker section has beengiven proper reservation, and they have acquired dignified post, there is a need to revisit these policies. The policy has to be revised and now the sections of the society who have beenuplifted shall be devoid of reservation benefits, instead the deserving candidates like whobelong to economically poor section, should be given the same.

But then the question arises, is India ready to live in an era where there is no reservation? With backward classes being a major vote bank for political parties, the development of the country seems to be lost in the politics of reservation which makes it evident that the backward classes will revolve around the dirty politics with very limited scope of their development and they will take down the deserving candidates along with them. Therefore, it seems that India is going to be stuck in this Bermuda triangle for coming years with very less scope of its development in this front.

THE WAY FORWARD

Almost 70 years have passed since independence. When the reservation policy was brought in, it was specifically stated that the policy is only for a period of ten years and once the backward castes are uplifted, it will be removed, but have we achieved our objectives. The big question mark lies here. We have seen that there are various bureaucrats, politicians, who have been uplifted yet they take the advantage of the reservation policy. Many politicians run their politics on the basis of reservation policy and at many a times this is being misused by the people belonging to the lower castes to torture the upper caste. What can be done to stop this?

A suggestion here would be to change the concept of reservation, by keeping intact the caste based reservations, and the concept for the reservation on the basis of economic status can be brought along. What is suggested here is that the reservation can be done on the basis of economy, the creamy layer which is applicable to SEBCscan also be made for the SCs and STs and that will definitely bring about equality in the society.

Overall, it would be appropriate to state that a person should try to uplift himself on the basis of merit and performance rather than enchanting caste based shortcuts in education as well as employment. At the end of the day, it is the merit that matters.

The reservation policy has played a major role not only to uplift the backward section of the society but has also caused hue and cry in the society. The deserving have been suppressed by the reservation policy and undeserving has been given the opportunity. None the less, the reservation policy has also done some good for the society, and has helped the weaker section which includes women, SCs and STs to come to main stream. The Supreme Court, the saviour of the Constitution has time and again tried to balance the interest of the politicians, reserved category and the generals.

Hence, it is proved that the Government is working towards a welfare society by focusing on the development of particular sections of the society. But this approach seems to be lost as there is a need for revisiting the reservation policy in India due to its increased misuse. Therefore, the reservation policy is required to be based on the economical basis and not on the class or caste basis.

The reservation policy which has uplifted the lower section has been a good policy but now the time has come to reform the policy rather than increasing the time by 10 years every time.

 

 

[1] AIR 1951 SC 226.

[2]ibid.

[3] E. V. Chinnaiah v. State of Andhra Pradesh, AIR 2005 SC 162.

[4]AIR 1963 SC 649.

[5] AIR 1964 SC 1823.

[6] AIR 1968 SC 1012.

[7]AIR1975 SC 563.

[8] AIR 1976 SC 2381.

[9]AIR 1993 SC 229.

[10]AIR 1981 SC 2045.

[11] (1984) 3 SCC 654.

[12]AIR 1999 SC 2894.

[13]AIR 1964 SC 179.

[14] AIR 1976 SC 490.

[15] AIR 1973 SC 477.

[16] AIR 2008 SCW 2899.