- Reservation, in India, is the process of facilitating people, by reserving access to seats in education, scholarship, government jobs, etc. that have faced historical injustice in the society.
- Reservation is the form of quota-based affirmative action. Reservation is governed by constitutional laws, statutory laws, and local rules and regulations.
- Recently, The Supreme Court observed that reservation of seats to certain communities was not a Fundamental Right while dismissing petitions regarding 50% seats for Backward Classes for the All India Quota seats in medical and dental science courses.
- All political parties from Tamil Nadu filed a writ petition under Article 32 of the Constitution in the SC seeking direction to the Centre for implementation of 50% OBC reservation in the all-India NEET seats provided by the state.
Observation of SC:
- The court said in its observation that “We appreciate the concern of all the political parties for the welfare of backward classes. But the “reservation is not a fundamental right”.
- The court observed verbally that no case was made out for the petitioners to approach the top court directly under Article 32.
- The SC in a ruling passed in February had held that there is no fundamental right to claim reservation in public jobs and no court can order a state to provide for reservation to SC/STs
Constitutional Provisions governing Reservation in India
- Part XVI of the Constitution deals with reservation of SC and ST in Central and State legislatures.
- Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST.
- The 77th Constitutional Amendment Act, 1995 inserted Article 16 (4A) to enable the government to provide reservation in promotion.
- Later, clause Article 16 (4A) was modified by the 85th Constitutional Amendment Act, 2001 to provide consequential seniority to SC and ST candidates promoted by giving reservation.
- 81st Constitutional Amendment Act, 2000 inserted Article 16 (4B) which enables the state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year.
- Article 330 and Article 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively.
- Article 243D provides reservation of seats for SCs and STs in every Panchayat.
- Article 233T provides reservation of seats for SCs and STs in every Municipality.
- Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.
Timeline of Reservation in India
- William Hunter and Jyotirao Phule originally conceived the idea of caste-based reservation system in 1882.
- The reservation that exists today was introduced in 1933 when British Prime Minister Ramsay Macdonald presented the Communal Award.
- This made a provision for separate electorates for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans, and the Dalits.
- Mahatma Gandhi opposed the Communal Award, whereas, B.R. Ambedkar supported it. To address the situation, Poona Pact was signed. According to which, the country would have a single Hindu electorate, with seats reserved for Dalits.
- After independence, initially reservations were provided only for SCs and STs by the virtue of constitutional provisions.
- The Supreme Court in State of Madras v. Champakam Dorairajan case (1951) upheld the Madras High Court judgement, which in turn had struck down the Government Order passed in 1927 in the [Madras Presidency].
- The Government Order had provided caste based reservation in government jobs and college seats. The Supreme Court's verdict held that providing such reservations was in violation of Article 29 (2) of the Indian Constitution.
- The court held that while in the case of employment under the State, Article 16(4) provides for reservations in favour of backward class of citizens, no such provision was made in Article 15.
- This led to the First Amendment to the Indian constitution
- The Parliament amended Article 15 by inserting Clause (4).
- It empowered the state to make special provisions for the advancement of socially and economically backward classes.
- In 1979, during the Janta Party government, the President (In exercise of the powers conferred by Article 340 of the Constitution) appointed the Second Backward Classes Commission under the chairmanship of B. P. Mandal.
- The commission was formed to determine the criteria for defining India’s “socially and educationally backward classes” and to recommend steps to be taken for the advancement of those classes.
- The Mandal Commission concluded that India’s population consisted of approximately 52% OBCs, therefore 27% government jobs should be reserved for them.
- The commission has developed eleven indicators of social, educational, and economic backwardness.
- Apart from identifying backward classes among Hindus, the Commission has also identified backward classes among non-Hindus (e.g., Muslims, Sikhs, Christians, and Buddhists.
- It has generated an all-India other backward classes (OBC) list of 3,743 castes and a more underprivileged “depressed backward classes” list of 2,108 castes.
- Popularly known as OBC Reservation, the recommendations of Mandal Commission were implemented in 1990 by the VP Singh government.
- This caused civil disturbance and anti-reservation protests throughout the country resulting in a huge loss of life and property.
- Prime Minister P.V. NARSHIMA RAO, thus, issued another office of memorandum by making Two changes:
- Introducing the economic criterion in granting reservation within 27% in Govt. Job.
Creamy layer is a term used to refer to some members of a backward class who are advanced socially, economically and educationally.
- They constitute the forward section of that particular backward class — as forward as any other forward class member.
- In 1993 when “creamy layer” ceiling was introduced, it was ₹1 lakh. It was subsequently revised to ₹2.5 lakh per annum in (2004), and revised to ₹ 4.5 lakh (2008), ₹6 lakh (2013) and currently stands at ₹8 lakh (2017).
- Reserved another 10% of vacancies for the socially & educationally backward classes.
- Indra Sawhney Case of 1992: The Supreme Court, while upholding the 27% quota for backward classes, struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.
- Supreme Court also upheld the principle that the combined reservation beneficiaries should not exceed 50% of India’s population.
- The concept of ‘creamy layer’ also gained currency through this judgment. The Court has said that the creamy layer of OBCs should be excluded from the list of beneficiaries of reservation
- Backward Classes of the Citizens of in Article 16(4) can be identified on the basis of caste and not only on the economic basis.
- Article 16(4) is not an exception to Article 16(1)
- The backward classes in Article 16(4) are not similar to as socially backward classes in Article 15(4) i.e. SC and ST
- Article 16(4) permits the classification of backward classes into more backward classes.
- Provision that reservation for backward classes should be confined to initial appointments only and not extend to promotions.
RESERVATION IN PROMOTIONS
- The Parliament responded to the Indra Sawhney case judgement by enacting 77th Constitutional Amendment Act (1995) which introduced Article 16(4A).
- The article confers power on the state to reserve seats in favour of SC and ST in promotions in Public Services if the communities are not adequately represented in public employment.
- The 85th Constitution Amendment Act, 2001: Provided for “consequential seniority‟ in the case of promotion by the virtue of rule of reservation for the government servants belonging to the SCs and STs with retrospective effect from June 1995.
- In M. Nagaraj v. Union Of India 2006 case, the Supreme Court, while upholding the constitutional validity of Article 16(4A) held that any such reservation policy in order to be constitutionally valid shall satisfy the following three constitutional requirements:
- Collect quantifiable data on backwardness of the class
- Prove its inadequate representation in public employment
- Show no compromise on efficiency of administration
- The state was also required to ensure that the reservation does not breach the 50?iling.
- The ruling also said that the ‘creamy layer’ concept applies to SCs and STs for promotions in government jobs.
- Jarnail Singh vs Lachhmi Narain Gupta case (2018): In this case, the five-judge bench reviewed the criticisms made against Nagaraj judgment. The Supreme Court held that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes.
- The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in promotion to SC/ST individuals who belong to the creamy layer of their community.
Implications of Jarnail Singh case Judgement
The judgment has significant and a long term bearing on the discourses on affirmative action as it smashes the misconstrued notion that reservations impact administrative efficiency.
- It brings attention to the fact that merit lies not only in performance but also in achieving goals such as the promotion of equality, and not just a formal equality of opportunity but the achievement of substantive equality.
Substantive equality is a fundamental aspect of human rights law that is concerned with equitable outcomes and equal opportunities for disadvantaged and marginalized people and groups in society.
- Substantive equality recognizes that policies and practices put in place to suit the majority of clients may appear to be non-discriminatory.
- It is an outcome of the policies, procedures, and practices used by nation states and private actors in addressing and preventing systemic discrimination.
- It ensures measures required to counter disadvantage and facilitate real equality.
- In May 2019, the Supreme Court upheld the constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018.
- Significance: it underlines “a ‘meritorious’ candidate is not merely one who is ‘talented ‘or ‘successful’ but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration”
RESERVATION IN EDUCATIONAL INSTITUTIONS
- In P.A. Inamdar & Ors. Vs. State of Maharashtra & Ors case (2005), the Supreme Court declared that the State cannot impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges.
- To impose the State’s reservation policies on the private unaided colleges, 93rd Constitutional Amendment Act, 2005 was enacted.
- The act aims to provide greater access to higher education including professional education to a larger number of students belonging to the socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
- It inserted clause (5) in Article 15 of the Constitution with a aim to promote the educational advancement of the socially and educationally backward classes of citizens, the Scheduled Castes and the Scheduled Tribes through special provisions relating to admission in all educational institutions, including private educational institutions, whether aided or unaided by the State.
- According to the critics, it “unequivocally destroys the essence of equality embedded in the Constitution by excluding educational institutions established by minorities and subjecting non-minority established institutions alone to bear the burden of weaker sections that are less meritorious.”
- The Supreme Court upheld the law providing a quota of 27% for candidates belonging to the Other Backward Classes in Central higher educational institutions.
- But it directed the government to exclude the ‘creamy layer’ among the OBCs while implementing the law. The institutions wisll also include the Indian Institutes of Technology and the Indian Institutes of Management.
- It thus paved the way to giving effect to the Central Educational Institutions (Reservation in Admission) Act, 2006, from the academic year 2008-2009.
- It excludes the minority institutions from Article 15(5), by reasoning: “It does not violate Article 14 as minority educational institutions are a separate class and their rights are protected by other constitutional provisions.”
RESERVATION FOR ECONOMICALLY WEAKER SECTIONS
- The government recently enacted 103rd Constitutional Amendment Act, 2019 thus introducing an economic reservation (10% quota) in jobs and admissions in education institutes for Economically Weaker Sections (EWS) by amending Articles 15 and 16.
Qualifying criteria for EWS Reservation
- All members of whose family together earn less than ₹8 lakh per annum.
- Have less than 5 acres of agricultural land.
- Do not possess a residential flat of area 1000 sq. ft or larger.
- Do not possess a residential plot of area 100 yards or more in notified municipalities and 200 yards or more in areas other than notified municipalities.
- It inserted Article 15 (6) and Article 16 (6). It was enacted to promote the welfare of the poor not covered by the 50% reservation policy for SCs, STs and Socially and Educationally Backward Classes (SEBC).
- Reservations for the SEBCs are an example of vertical reservations and were different from horizontal quotas such as those provided for the physically challenged, etc.
- Before the 103rd CAA, many states also tried to introduce quotas for the economically weak among unreserved categories in addition to reservations for socially and educationally backward by inserting these laws in the Ninth Schedule.
- The apex court however, blocked that route in the Coelho case, insisting that no law placed in the Ninth Schedule can violate the basic structure of the Constitution.
- The detractors argue that the amendments run contrary to the constitutional scheme, where no segment of available seats/posts can be reserved, only on the basis of economic criterion.
- The amendments also run contrary to the judgment pronounced in the Indra Sawhney V. Union of India 1992 case, that a backward class cannot be determined only and exclusively with reference to economic criterion.
- The amendments alter the 50% quota limit set up in Indra Sawhney V. Union of India 1992 case, which according to the petitioner is a part “Basic Structure” of the Constitution.
- Encouraging reservations: The original intent of constitutional makers as manifested in Article 15 and 16 was to be reviewed after 10 years. However, instead of restricting the policy of positive discrimination, the government is pushing it in some or other forms.
- Populist measure: It has been criticised as a part of “vote bank politics” by the government for political objectives.
- Determining economic backwardness: It is a major challenge as there are concerns regarding inclusion and exclusion errors of persons under the criteria due to lack of legitimate economic records.
- Negligible Impact: As government is moving towards more privatisation, government job opportunities are shrinking, thus making the provision to reap any real benefits.
Arguments in Favour
- The government argues that the amendment was necessitated to benefit EWS who are not covered under existing schemes of reservation, which as per statistics, constitute a considerably large segment of the country’s population.
- The 50% limit in the Indira Sawhney ruling cannot be applied in the present petitions as the Sawhney case dealt with memoranda issued by the government while what is under challenge now is a constitutional amendment.4
- EWS reservation through a constitutional amendment would give constitutional recognition to the poor from the upper castes.
- Economic criteria for reservation make sense if we consider many people or class other than backward classes who are living under hunger and poverty-stricken conditions.
- It may gradually remove the stigma associated with reservation because reservation has historically been related with caste and most often the upper caste look down upon those who come through the reservation.
SR Sinho Commission on Economically Backward Classes (EBCs), 2006
- The reservations in government jobs and education should be given to general category poor and a constitutional amendment is necessary with this respect.
- The commission highlighted that non-income tax payee general category people were economically backward, at par with the OBCs.
- EBC children should be made eligible for soft loans for higher education, scholarships, coaching for central and state civil services examinations, subsidized health facilities and government support in the housing sector.
- The commission suggested establishing a National Commission for providing financial assistance to EBCs.
DEMAND FOR RESERVATION BY DOMINANT GROUPS
- In Haryana, the Jats, an agrarian middle caste that has been clamouring for OBC status since the late 1990s, took a particularly fierce and hostile turn in 2016.
- The Government of Haryana had approved the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Bill.
- The enacted Bill enlists the Jats in the recently sculpted Backward Classes (C) category, making them eligible for 10% reservation in class 3 and 4, and 6% reservation in class 1 and 2 jobs.
- On 26 May 2016, the Punjab and Haryana High Court ruled out against the Bill.
- In Gujarat the Patels, a dominant caste, were at the forefront of this agitation, demanding that the quotas for SCs/STs be scrapped. They labelled quotas as anti-merit and unfair.
- Since 2015, the Patels or Patidars have been on the streets, demanding to be classified as OBC. The movement has occasionally turned violent with damage to public property.
- The Gujarat Government tried to woo Patidars by providing 10% quota to the community through an ordinance.
- However, it was struck down by the Gujarat High Court, which held the move as "illegal" and "unconstitutional".
- The Marathas, a predominantly landowning caste and a politically and economically dominant group in the state of Maharashtra, have been demanding to be included in the OBC category since the 1990s.
- Bombay High Court on 27 June, 2019 upheld the validity of reservations in education and government jobs granted to the Maratha community bringing down the quota from the proposed 16% to 12% for education and 13% for jobs.
- The Supreme Court (SC) is set to commence the final hearing on the batch of Special Leave Petitions (Article 136) against Maratha reservation in Maharashtra.
- The SLPs challenged the Bombay High Court (HC) decision, which upheld the constitutional validity of the Maratha quota under the state’s Socially and Educationally Backward Classes (SEBC) Act, 2018.
- The Gujjars have held several rounds of protests since 2005 for reservation in educational institutions and employment in a separate backward category.
- From 2006 onwards, Gujjar leader Kirori Singh Bainsla has led a movement demanding that 5% of seats from within the OBC quota be carved out for Gujjars.
- The Ashok Gehlot-led Congress government in 2012 offered 5% reservation to the community in the hope that at least 1% would be within the 50?iling. But the remaining 4% was challenged again in court.
Reasons for Increasing Reservation Demand
- Absence of enough attractive jobs in India. There is also a special status associated with “government jobs” in Indian society which makes it much highly demanded.
- The education system in India, fail to train graduates properly enough to participate in the economy. There is also lack of entrepreneurial environment which encourages job creation instead of job seeking.
- In the context of these failures, there has been a clamour amongst the educated upper caste groups for a reservation route to be opened up for them for much coveted government seats and vacancies.
- Farmers Distress has also been another reason for demand in the reservation, as the agriculture dominant upper caste is now facing an economic slowdown.
- According to the National Sample Survey (NSS 59th round), the average land holding in India came down from 2.63 acres in 1960-61 to 1.06 acres in 2003-4, or down by about 60% in four decades.
- Resentment towards OBCs: Dominant castes have seen their power declining, their resentment towards the OBCs and especially the creamy layer, has grown over the years.
- While numerous surveys and statistics pointed out that the reservation of OBCs has empowered the poor. Nevertheless, it led to a new breed of identity politics and a spate of violence and unrest.
- Vote bank politics: Many of the agitations are a by-product of mobilization of populations by a few in order to gain political advantage.
RESERVATION FOR WOMEN
- The 108th Constitutional Amendment Bill seeks to reserve for women one-third of seats in Parliament and the State legislatures.
- The reserved seats may be allotted by rotation to different constituencies in the state or union territory.
- The bill also provides that reservation shall cease to exist after fifteen years from date of implementation.
Need for reservation for Women
- The abysmal representation of women in the parliament and state legislature needs an extra push in the form of affirmative action.
- It is often found that women in higher echelons seeks to serve interests of women overall, that will thereby lead to better policy making.
- As per 73rd and 74th amendment act, the reservation had improved the status of women in the society and had created a niche for women centric governance at the local level.
Arguments in Favour
- Recent studies on Panchayats have shown positive outcomes of the reservation of seats for women.
- It may ensure greater representation of women in the political arena.
- It allows for the flexibility of the number of women in parliament.
- It does not discriminate against male candidates. Rather, it calls for the equal representation of their women counterparts.
- It is not a permanent setting and gets terminated after 15 years. This temporary solution can ensure the much needed equal representation of women in Indian politics.
- It may propagate an unequal status for women since they may not be perceived to be competing on merit.
- The reservation of seats to women in parliament restricts the choice of the voters to women candidates who the people may or may not prefer.
- Rotation of reserved constituencies during elections may reduce the incentive for the MP to develop his constituency.
- The political parties may assign its women candidates in constituencies where their representation is limited.
- There may be public resentment of the women candidate if a constituency has a stronger male candidate.
- Critics argue that reserving a constituency for women would mean a loss of opportunity for men who could have been a better or more qualified candidates
- It is argued that, in a representative democracy, where 131 of 543 seats are already reserved for SCs and STs, an additional 33% quota will be a disproportionate representation of people’s will.
- There can be two alternatives that can be used to address this issue:
- Providing reservations to the women candidates within the political parties. Example: Sweden, Norway, Argentina, etc.
- Dual member constituencies to ensure their representation by at least one woman.
- Training and moral support must be given by political parties to enable women to actively participate in governmental activities.
- Proactive measures must be taken by the government to remove the patriarchal mind-set of the society.
RESERVATIONS IN INDIA - WAY FORWARD
- Reservation is fair, as far as it provides appropriate affirmative actions for the benefit of the downtrodden and economically backward Sections of the society.
- But when it tends to harm the society and ensures privileges to some at the cost of others for narrow political ends, it defeats the purpose of positive discrimination.
- If social justice is the cornerstone of the reservation policy, India is at a juncture where social justice can only be ensured by creating jobs and educational opportunities on a large scale and not by further extending reservations along caste lines.
- It is necessary to recognize that discrimination, hence exclusion, is multi-dimensional. It is not only about caste but also about religion, gender, ethnicity and, ultimately, income.
- The communities excluded from reservations harbour animosity and prejudice against the castes included in the reservation category.
- When more people aspire for backwardness rather than of forwardness (Desanskritization), the society itself stagnates.
- Meritocracy should not be polluted by injecting relaxation of entry barriers, rather than it should be encouraged by offering financial aid to the underprivileged.
- A strong political will is indispensable to find an equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system