In the American Declaration of Independence, it is said that “All men are created equal, that they are endowed by their creator with certain unalienable rights.” This notion of inalienable rights and their equal distribution has emerged in the early 16th century in the works of the social contractors- Hobbes Locke and Rousseau. John Locke said that the right to life, liberty and property are natural rights which are enjoyed by everyone alike and are not separable from the person. This gives us an idea that the right to equality is more basic than natural law itself. Thus in its creation, the state is obliged to provide for this right, not just legally but functionally.
The preamble of India constitution contains the phrase: “Equality- social political and economic”
These are different types of equalities and the state has to ensure that its citizens are provided with each and every one of these. Social equality is the most common in pluralistic societies but no provision of law can be made in this regard. So, it is done by means of the other two categories- political and economic. Political inequality materializes from the said social inequality but as politics is a government functionary, legislations are made to guarantee this right. On the other hand economic inequality is a very practical phenomenon and thus active steps can be taken to empower all people economically. This, in retrospect, hampers social inequality because economic status is closely connected with social status. Thus, the state has a burden to justify, through its legislations and its implementation that equality is sought to be achieved and only in doing so will it realize true equality.
INDIAN LAW FOR EQUALITY
The constitution of India says, “The state shall not deny to any person, equality before the law or the equal protection of the laws within the territory of India.” this is the article 14 of our constitution which is construed as one of the fundamental rights of the people living under it. The provision is very clear. The phrase “equality before law” is an adaptation of a postulate of the rule of law followed by the equity courts in England. It is the quintessential principle to be set down before exercising any authority on a group of people. Even when the British ruled over India, this was a prominent legal provision. The glaring inequality that was followed under the British rule is widely known. So equality as a concept is not debated upon but it is also very complex and although every single country in the world which has a constitution provides for this right, the implementation of this right varies. Some stated follow formal equality as they have a more homogenous mixture of population like the communist countries. Other states follow substantive equality where there are already huge inequalities prevalent. The important thing to note is that equality is a value that every government believes in but the interpretations are varied and none of them have been proved wrong.
RESERVATION POLICY IN INDIA
In the case of India, the reservation policy has been adopted for alleviating inequalities in the political and economic scenarios. This is a method of achieving substantive equality. India has a pluralistic society and the main forms of discrimination are caste and religion. India being a male dominated society, sex is also an important basis for inequity. The constitution swears to not discriminate on any of these grounds and hence we have a reservation policy for the protection of the interests of all discriminated groups. The problem arises in targeting this group and meeting the ends for which reservation is created. In law, there are two principles that have to be complied with before legislating it. First, there should be a rationale for creating the said law and second, there should be nexus between the law and the goal sought to be achieved. The rationale has been justified time and again by our legislators and people have come to terms with the fact that there is no other way to subdue discrimination than reservations. But is there a direct link between the provisions of this policy and the ultimate goal of equality? The answer to this question keeps changing from time to time and that is what we are trying to analyze in this paper.
The minorities in India started getting recognized by law through the provision of communal electorates. This was seen as one of the reasons for the partition of India and Pakistan, but from the viewpoint of equality, this was one of the first efforts to bring about political equality and avoid discrimination against minority communities. The reservation policy in the basis of caste started when the Simon Commission came to India with the rule of separate electorates and reservations for depressed classes. But a concrete legislation was passed only later on after independence when Dr. B.R. Ambedkar fought for the rights of the SC’s, ST’S and OBC’s. During the constitutional assembly debates, he supported the cause of backward castes time and again and believed that reservation policy is the only way to eradicate these disparities. However, the reservation policy was always a provisional one and not permanent. For years now, the time limit has been increasing as the government did not feel that the required amount of equality has been achieved in the social, economic or political life of people.
THE RATIONALE OF THE PRESENT RESERVATION SYSTEM
The question we need to ask is if the present reservation system is a true reflection of the altruistic persuasions of the legislators or that of their political interests and/or political pressures. The truth is that inequality is prevalent everywhere in different forms. The constitution only provides for or recognizes a part of them. For example, disability is also grounds for discrimination. However, the limited reservations made for them are never objected or extended. In public sector, 3% is the reservation for disabled persons where as it is 27% for OBC’s when in fact; the percentage of disabled people in India is more than the percentage of OBC’s. Why is this so? Law is subject to the interpretation of the courts and the dynamic nature of law finds its sanction in the opinion of the judiciary. But, courts regularly deal with cases regarding reservations for SC/ST’s or OBC’s or women, and not for the disabled. Does the meaning of equality change in every context? To provide “equal opportunities” to the oppressed classes means, to help them acquire their maximum potential- not to make things easier for them. This is a lesson one should learn from the history of independent India.
The other issue under the system of reservations is that of the creamy layer. The distance that we have travelled after enacting reservations has eliminated certain disparities. Caste no longer can be the sole criterion for detecting socially backward classes because some of them have achieved economic status, thereby finding a social standing as well. Thus, in the Mandal commission case, the court has observed that this particular strata of the society which they termed as the “creamy layer” should be eliminated from such reservation policies as it is hampering the goal of the provision. However, what goes beyond my comprehension is that if a creamy layer exists despite being a socially backward class, maybe the objective is achieved. The law has different reasoning to support this policy from time to time but how would we identify the situation where the “goal” is truly reached. Waiting for absolute equality is not practical as it is only a utopist situation. Meanwhile resistance is offered by the classes which are not socially backward, also for the reason of discrimination. In such a situation what kind of help is the government providing with the reservation scheme? This is the dilemma that is struck the entire policy down.
Majoritarianism is a common vice that persists in a democratic society. As the government is chosen by the majority and every decision that is taken depends upon the majority vote, the law tends to favour this majority. But there are different ways of identifying this majority- educated people, economically and socially powerful people, people of the forward caste, Hindus, males, etc. some of these classes might overlap but the essence remains the same. These are the people who make the law and whom the law favors. However, in India, the constitution makers wanted to avoid this situation of hierarchy and majority rule. A true democracy is established when all people have the same ability to make the decisions regarding the government. For this reason the reservation policy is adopted to bring this equality in thought and goals. Reservations by themselves are not unfair, but they become so when the ground for distinction loses its credibility. In case of India, that is what is happening, because SC’s, ST’s and OBC’s are not purely classified as socially backward and a line should be drawn somewhere. The violation of a principle of equality reduces public confidence in the government. The loss of this confidence prophecies anarchy and in a pluralistic democracy like ours, its very important to maintain this fine balance between power and principle. Thus, reservation maybe a means to achieve equality but if not administered properly, it can also achieve inequality.
Neha Tilak Ratakonda
Symbiosis Law School
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]