Aim: Reservation in India happens to be a hotly debated issue. This article presents the reasons attributable for bringing in the provision of reservation. The article further, presents a historical analysis of reservation, and compares it with the affirmative action programs in other countries. Alternative suggestions to reservation have been provided.
“Yet another dream was crushed and strewn to dust as the reservation system got better of her ambition of becoming a doctor.”
Years of independence of India, and yet we are in need of a system which reserves seat for some particular sections of the society. It adequately narrates the tale of something that is wrong with this country and its structure of imparting education and employment.
In simple language, reservation refers to an act of withholding, reserving or keeping back some of the seats for the upliftment of status and standard of living socially and educationally backward sections, classes or groups. In a legal understanding, reservation in Indian law is a form of affirmative action whereby a percentage of seats are reserved in the public sector units, union and state civil services, union and state government departments and in all public and private educational institutions, except in the religious or linguistic minority educational institutions, for the socially and educationally backward communities and the Scheduled Castes and Tribes who are inadequately represented in these services and institutions.
Reservation in India came in to address a context, much like the caste system itself did. The caste system meant to be an occupational division, took an ugly turn over the ages. Intermingling of classes were restricted and it lead to untouchability and other social evils and built an oppressive environment of animosity. There is no denying that social discrimination based on caste, creed, and religion continues to be one of the most inhuman and evil practices in human society.
For a country that has a scarcity and limited public resources, despite being one of the largest democracies of the world, reservation has an important social, economic and political implications.Since the day caste-based reservations were implemented in India, there has been seething dissatisfaction among the groups, which may have increased over the past few decades due to the extension of reservation policy, which now includes backward classes as well. Despite the continuation of reservations for over six decades, discrimination against Dalits is still a part of everyday life. A 2006 book by Ghanshyam Shah and co-authors Untouchability in Rural India, suggests that there have been important improvements in recent decades, but that equal treatment has certainly not been achieved. There is a critical need to revise, refine and improve reservation policy in India depending upon its dynamic needs.
The pertinent question that remains to be considered is that has the policy of reservation that has been continuing for over six decades now, and has been expanding, served the purpose of upliftment of the socially and educationally backward sections of the society or has it given rise to other forms of social evils, including animosity between the classes and further oppression of the reserved classes as a means of backlash against them. This paper aims at doing the same.
The major reason for the inclusion of reservation system in the Indian Constitution is the that the framers of the Constitution believed that the SCs and the STs were historically oppressed and denied respect and equal opportunity in the Indian society, due to the deeply rooted caste system, and hence, this was the cause of their under-representation in the nation-building activities and to uplift such groups of people, Article 15 and 16 was put into the Constitution.
Representation of the backward communities in the Indian politics and the mainstream would have been a society and for that reason provisions were made Under Article 15 and Article 16 of the Indian Constitution, so as to allow the policy of reservation for them. These communities constituted a huge chunk of the society and the exclusion of them from the legislature and the law making of this country would not have made enough sense.
Cultural & Societal Reasons:
The social structure in the Indian subcontinent commonly known as the caste system has roots that can be traced back thousands of years. Thebroad superstructure of traditional Hindu social ordering is the varna system. When they conquered the indigenous Dasa peoples, the Aryan people already had a social structure containing three hierarchical social groups: the Brahmins (priests), Kshatriyas (warriors and aristocrats), and Vaisyas (merchants and others). At some point after the conquest, a fourth varna, the Shudras (peasants, laborers, and servants) emerged.Absent from the classification were the groups who later came to be known as Dalits (untouchables), who were entirely excluded from the varna system and consequently excluded from much of Indian village life.
The caste system which has been general seen as a character of the Hindu religion and therefore, ratified by its structure. But, over the years, it has been absorbed into the other religions like Islam, Buddhism, Jainism and other ostensibly anti-caste religions.
Hence, from the very roots of its origins, the Indian society has been discriminating against a certain sect of people, who are of “lowly” birth, as they considered. This created a pertinent of reservation in the Indian society and culture to save these persecuted communities from further oppression and to promote their development and education. At least, this is what is the reason with which reservation had come up in India.
Comparative Analysis & Affirmative Action:
Affirmative Action in USA:
The affirmative action policies in USA are race sensitive and have led to the development of the minorities and extend even to women unlike in India. Some of them have even been withdrawn due to the criticism that they result in extreme partiality towards minorities and women. The affirmative action in USA essentially aims to achieve targeted goals and not provide blanket reservation to the specific quotas. First time, the phrase “affirmative action” was used by John F. Kennedy in his executive order no. 10925 which directed “all government agencies to go beyond passive non-discrimination to take affirmative action so as not to discriminate in hiring”.
The 1964, Civil Rights Act mandated non-discrimination by race/ethnicity within any federally assisted program. The executive order of 10925 was revised by the executive order of 1965 which called for affirmative action in recruitment and outreach practices. The USA Supreme Court in its landmark judgment, California v. Bakke 1978 held that consideration given to race/ethnicity in University admissions is constitutional. In Hopwood v. Texas, U.S. Court of Appeals for the 5th Circuit decided against the affirmative action in university admissions. At present, the racial or gender quotas for college admissions have been declared unconstitutional by the case of Gratz v. Bollinger, 2003.
The main objective of affirmative action mechanism in USA is to combat racism and discrimination in general in American society. It is argued that such action diversifies the homogenous institutions and places of employment. As compared to this, there is enough criticism of the affirmative action in USA, as the opponents allegedly call it as “reverse discrimination”. It is said to be psychologically deleterious to the blacks, women and any other intended beneficiaries. However, another line of criticism has been proclaimed by the Critical Race Theory which argues that the “affirmative action” programs are not unconstitutional or unfair rather slow-paced and ineffective.The first line of criticism has come about as a matter of debate and has not been essentially solved, however, the second line of criticism can help us reach a conclusion and adopt better methods.
Affirmative Action in South Africa:
Like India, South Africa has a long-standing and rigid history of social discrimination. Combating the racial inequalities is the main aim of affirmative action in South Africa, some consideration is also paid to the need for affirmative action in favour of women. It was only in 1994, every South African was allowed to participate in parliamentary elections in the form of “one person, one vote”. Following the attainment of democracy, the government led by African National Congress chose to implement affirmative action legislation to correct previous inequalities this policy came to be known as “employment equity”. The Reconstruction and Development Programmes thus, began to readdress past imbalances.
Affirmative action in South Africa ensures that qualified people from designated disadvantaged groups have equal opportunities. The Employment Equality Act of 1998 gave an increased impetus to the affirmative action movement in South Africa. Although the affirmative action has altered the political and economic conditions of the once-apartheid state, it has not succeeded in transforming the lives of the poor and marginalised.
Africa, has a quota-based reservation system which often gives preference to quota fulfilment over quality impairing the overall growth and development of the nation. The politics of South Africa is centred only on nurturing and consolidating a black middle class appease disgruntled and potentially disruptive educated blacks so as to lessen the inter-cultural instability. Thus, the major challenge that South Africa faces is to develop a paradigm balances the divergent interests of different social groups on the spectrum without hind ring any.
Affirmative Action in Brazil:
Brazil faced racial ambiguity and inequality in greater terms as compared to most other states. In 1968, Brazilian government signed U.N. Convention 111 which mandated the promotion of racial/ethnic minorities in occupations. In 2001, a major leap was taken when President Fernando Henrique Cardoso signed National Program for Affirmative Action, aimed at diversifying governmental agencies. This was an unexpected implementation which was preceded by no discussion. The goal of affirmative action in Brazil was twofold: to combat racial discrimination and to expand the access to higher education for traditionally disadvantaged groups so as to create a level playing field.
Rio de Janeiro took a major step in light of reservation system when in 2001 it announced reservation of 40% of admission slots in state universities for Black and pardo students and 50% of state university slots for public school graduates. This quota was subsequently reduced in 2003 due to major criticism. Finally in 2009, the State University of Rio de Janeiro’s quota program was held unconstitutional by a state tribunal.
Though the caste/race-based quota system of affirmative action in Brazil has been subjected to much criticism, it was upheld by the eleven-member Brazilian Supreme Court. This has led to the change in racial identity in Brazilian society. Affirmative action programmes in Brazil have achieved success yet lot needs to be done in general context as the major focus is confined to equal opportunities in the Universities.
History of reservation & its continued existence:
Article 334 was titled in the Constitution, on 26th November 1949, as “Reservation of seats and special representation to cease after twenty years.” This meant that reservation of SC/STs in Lok Sabha and in the Legislative Assemblies of the States should not have been in effect post 1970.
However, as per the 23rd Amendment of the Constitution, in 1970, article 334 was amended and the reservation for SC/ST and nomination of Anglo Indian members in Parliament and State Assemblies for another 10 years, that is till 1980. Basically, when constitution of India was written, the goal was set for twenty years to bring a reform among SC/STs. However, lack of accountability among politicians and creation of vote-bank politics resulted in further 10-year extension of the time-line.
On January 25, 1980, article 334 of the Indian constitution was again amended to extend the reservation for another ten years (up to 1990). It was further amended time and again and the reservation time line has been kept on being pushed forward. What remains to be a topic of concern is that the situation of the SC/STs does not seem to be that favourable even after extended periods of reservation.
The grandson of Dr. B.R. Ambedkar, Prakash Ambedkar, had stated in an interview,
“Legislation doesn’t change people. That’s why B.R. Ambedkar didn’t believe that reservation of constituencies or jobs for Dalits would change the way Indian society looked at its lower castes. He reluctantly agreed to reservation in the belief that it would be discontinued 10 years after the adoption of the Constitution. But half a century later, reservation remains an issue in India.”
The practice of reservation had to be continued in the Indian politics for the sake of representation of the Dalit communities in the mainstream of the society. Having said that it is also necessary to understand that had the reservation had ended in Indian politics as back as in 1960s, the situation for the Dalits would have largely remained the same because the Dalit politicians remain a puppet in the hands of the more powerful parties like Congress and BJP.
Reservation also became a means of political tool used by the politicians to sway votes in their favour. Using the rhetoric of representation and welfare by means of reservation, the politicians have for long fooled the population of this country with their lofty promises.
There was also a high risk of violence erupting because the Dalit youth of India had been oppressed for centuries and once, it recognised its right and the true meaning of representation in the mainstream of the society, taking it away from them would have resulted in large scale violence from these communities.
Stance of Indian Legislature & Judiciary:
Article 15 of the Indian Constitution is concerned with the prohibition of discrimination on grounds of religion, race, caste, sex, place of birth or any of them. The State is prohibited to discriminate on any such grounds. The same article in further clauses states:
- “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 Scheduled Tribes.”
- “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 scheduled castes or scheduled tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.”
Article 14 embodies the general principle of equality before the law. A specific application of the same principle is prohibited in Article 15. Article 15 concretises and enlarges the scope of Article 14. It prohibits certain classification even though they may be justified under Article 14 and expressly asks for making certain classifications which may be impliedly be within the reach of Article 14.
Even though Article 15(1) would have come into way of making favourable provisions for backward sections of society, as it prohibits the state from discriminating against the citizens on grounds only of religion, race, caste, sex and place of birth or any of them, but the interpretation of the same has been such that it guarantees rights, privileges and immunities to people pertaining to them being citizens generally, and not in case of specific application.
There is a long judicial history attached to the issue of reservations. The major cases are explored here in brief.
In the case of Nain Sukh Das v. State of U.P., the Supreme Court invalidated an Act of the State legislature which provided for elections on the basis of separate electorates for members of different religious communities.
In D.P. Joshi v. State of Madhya Pradesh, the Supreme Court held that a law which discriminates on the grounds of residence does not infringe Article 15 because place of birth is distinct from residence. Restriction provided in Clause 2 will apply only if the places mentioned in the Clause are either wholly or partly maintained out of State funds or dedicated to the use of general public.
Clause (4) was added by the Constitution (First Amendment) Act, 1951 as a consequence of the decision of the Supreme Court in State of Madras v. ChampakamDorairajan. In that case the Court struck down the communal G.O. of the Madras Government which, with the object to help the backward classes, had secured the proportion of students of each community that could be admitted into the State medical and engineering colleges. Although the Directive Principles of State Policy embodies in Article 46 of the Constitution lays down that the State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social unfairness, the court held that “the Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental rights”. Now clause (4) enables the State to make special provisions for the advancement of socially and educationally backward classes of citizen or for the Scheduled Castes and Scheduled Tribes. Such provisions include reservations or quotas and can be made in the exercise of executive powers without any legislative support.
In M.R. Balaji v. State of Mysore, it was held that the caste of a group of persons cannot be the sole or even predominant factor though it may be a relevant test for ascertaining whether a particular class is a backward class or not. Backwardness under Article 15(4) must be social and educational, and that social backwardness is, in the ultimate analysis, the result of poverty. One’s occupation and place of habitation could be the other relevant factors in determining social backwardness. The Court invalidated the test of backwardness which was based predominantly, if not solely, on caste.In this case the validity of a Mysore Government Order reserving 68 per cent of the seats in the engineering and medical colleges and other technical institutions in favour of backward classes including the Scheduled Castes and Scheduled Tribes was challenged. The Supreme Court characterized Art. 15(4) as an exception to Art. 15(1). Reservation of 68 per cent of the seats in the colleges was found to be plainly inconsistent with Article 15(4) of the Constitution.
In the State of U.P. V. Pradeep Tandon, in admission to medical colleges in U.P. in favour of candidates from- (a) rural areas, (b) hill areas and (c) Uttarakhand area was challenged. The classification was based on geographical or territorial considerations because in governments view the candidates from these areas constituted socially and educationally backward classes of citizens.The Court upheld reservations for persons from hill and Uttarakhand areas. It was found that the absence of means of communication, technical processes and educational facilities kept the poor and illiterate people in the remote and sparsely populated areas backward. However, reservation of seats for rural areas was invalidated because the division of the people on the ground that the people in the rural areas were poor and those in the urban areas were not, was not supported by the facts. Further, the rural population was heterogeneous and not all of them were educationally backward.
The question was again considered in Jayasree v. State of Kerala, where the Supreme Court was called upon to determine whether the constitutional protection could be extended to a person who belonged to a backward community but the family’s income exceeded the prescribed limit of certain amount per annum. The court held that in ascertaining social backwardness of a class of citizens, it may not be irrelevant to consider the caste of group of citizens. Castes cannot, however, be made the sole or dominant test as social backwardness which results from poverty is likely to be aggravated by considerations of caste. This shows the relevance of both caste and poverty in determining the backwardness of the citizens but neither caste alone nor poverty alone can be the determining test of social backwardness.
Upholding the validity of a total of 49.5 per cent reservation (22.5 per cent for SCs and STs and 27 per cent for SEBCs) in the Mandal Commission case, the Court held that barring any extraordinary situation Court mentioned of a far-flung remote area whose population needs special treatment for being brought into the mainstream. For such cases the Court suggested extreme caution and making out of a special case. The 50 per cent limit does not include those members of SEBCs who get selected on their own merit. They are entitled to get adjusted against the open category. The 50 per cent limit, however, applies to all reservations, including those which can be made under Article 16(1), i.e., altogether the reservation should not exceed 50 per cent limit. But this limit applies only to reservations and not to exemption, concessions and relaxations. Therefore 50 per cent limit may not apply to many situations under Article 15(4) and 16(4). For the application of 50 per cent rule a year should be taken as the unit and not the entire strength of the cadre service or the unit, as the case may be. So long as this limit is observed, carry forward rule is permissible. In this case, the Court clearly held that Article 15(4) and 16(4) are not exceptions to clauses (1) and (2) of those articles or to Article 14. They are rather the means of achieving the right to equality enshrined in those articles.
Article 16 of the Constitution deals with the equality of opportunity in matters of public employment. It is incumbent with the clause which says that nothing in the article would prevent the States from making any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the service under the State.
“Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Article 15 is more general than Article 16, the latter being confined to matters does not mention descent as one of the prohibited grounds of discrimination as Article 16 does.”
In Devadasan case, the Supreme Court was required to adjudge the validity of the carry forward rule. The carry forward rule envisaged that in a year, 17½ per cent posts were to be reserved for Scheduled Castes/Tribes; if all the reserved posts were not filled in a year for want of suitable candidates from those classes, then the shortfall was to be carried forward to the next year and added to the reserved quota for that year, and this could be done for the next two years. The result of the rule was that in a year out of 45 vacancies in the cadre of section officers, 29 went to the reserved quota and only 16 posts were left for others. This meant reservation upto 65% in the third year, and while candidates with low marks from the Scheduled Castes and Scheduled Tribes were appointed, candidates with higher marks from other classes were not taken.
In State of Kerala v. N.M. Thomas, the Supreme Court held that it was permissible to give preferential treatment to Scheduled Castes/Tribes under Art. 16(1) outside Art. 16(4).the Court observed: Art. 16(4) is not in the nature of an exception of Art. 16(1). It is a facet of Art. 16(1) which fosters and furthers the idea of equality of opportunity with special reference to an under privileged and deprived class of citizens. Thus, Art. 16(1) being a facet of the doctrine of equality enshrined in Art. 14 permits reasonable classification just as Art. 14 does. The majority ruled that Art. 16(4) is not an exception to Art. 16(1). Art. 16(1) it permits reasonable classification for attaining equality of opportunity assured by it.
In Ashoka Kumar Thakur v. State of Bihar, the Supreme Court has assessed the validity of unrealistically high levels of income or holdings of other conditions prescribed by the Legislatures of UP and Bihar as criteria to identify the creamy layer.The Supreme Court has quashed these conditions as discriminatory. The Court has ruled that these conditions laid down by the two States have no ‘nexus’ with the object sought to be achieved. The criterion laid down by the two States to identify the creamy layer are violative of Art. 16(4), wholly arbitrary, violative or Art. 14, and against the law laid down by the Supreme Court in the Mandal case, where the Court has expressed the view that a member of the All India Service without anything more ought to be regarded as belonging to the “creamy layer”.
Suggestions & Solutions to Tackle the Issue:
Firstly, we need to understand that the reservation system only divides the society leading to discrimination and conflicts between different sections since, it is oppressive and does not find its basis in casteism. It is actually the converse of a communal living.
Currently, as per the government policy, 15% of the government jobs and 15% of the students admitted to universities must be from Scheduled castes and for the Scheduled tribes there is a reservation of about 7.5 %. Other than this, the state governments also follow their own reservation policies respectively based upon the population constitution of each state. So nearly 50% seats are reserved.
The plausible solution to the issue of reservation rests on strengthening the educational infrastructure of the nation. Education should be made mandatory till the age of 15 hence, the dissemination of primary education would be fair and universal. More funds should be allocated to this effect and there is an urgent need to revamp the entire structure of teaching, learning and the obsolete administrative apparatus that hinders the growth of the nation rather than serving it. A review committee should be set up under a governmental authority which should submit annual reports, reviewing the implementation of allocation of funds at the primary and the secondary education level.
Reservation benefits, if provided, should be restricted per family to a maximum of two children irrespective of the number of children in a family, which would help in regulating the population of OBCs which will eventually result in decrease in their representation, giving way to the principle of equality. This could also be achieved where reservation can be extended to one generation only. A family that has availed it once should not be allowed to avail it in the next generation too. This would make it possible to do away with reservations in a phased manner.Once an OBC is self-sufficient then relegate him from that category and include him in the general category. Thereon, his coming generations will be termed as general category. This will result in reduction of the OBCs.
The root of the problem lies not in the demarcation of the categories but in the ever increasing rural and urban divide. In a rural village of India, a general category individual is suffering same as the OBC. So, the solution lies in bridging the gap between rural and urban India which can be done in concentrating on the rural setup and providing them all the basic facilities. This way we can reduce the concentration of power in few hands and provide sustenance to the weaker section i.e. the rural society.
However, if it is deemed necessary that 27% reservation is to be implemented then it should be done on the basis of satisfying the minimum criteria of marks which every student, irrespective of caste or class has to secure. It should only be after careful consideration of the calibre of the backward class candidates combined with his qualifying marks and reasonable intelligence that he should be given admission. In other words, if qualifying marks for a general category is, say 90 %, then the qualifying marks for the OBC candidate should be approx. 80 %. This will prevent dilution of academic standards. Also, in case the quota seats are not filled then after a lapse of particular period of time, the remaining seats should be made open to the general category. This will prevent wastage of seats.
Edited by Vedanta Yadav
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