Reservation Policy in India

Article for Blog Post Writing Competition 2011 | by Jai Prakash Meena


April 20th, 20111:26 pm


INTRODUCTION

I try to look upon the problem not in the sense of religious minority, but rather in the sense of helping backward groups in the country. I do not look at it from a religious point of view or a caste point of view, but from a caste point of view that a backward class ought to be helped, and I am glad that this reservation will be limited to ten years…

Jawaharlal Nehru addressing the Constituent Assembly, May, 1949.

Reservation

Reservations is a means to increase representation of hitherto under-represented caste groups and thereby improve diversity on campus.

Seats in educational institutions and jobs are reserved based on a variety of criteria. The quota system sets aside a proportion of all possible positions for members of a specific group. Those not belonging to the designated communities can compete only for the remaining positions, while members of the designated communities can compete for all positions (reserved and open). For example, when 2 out of 10 clerical positions in railways are reserved for ex-servicemen, those who have served in the Army can compete both in the General Category as well as in the specific quota.

Constitutional Provision

The basic approach was specified in Articles 14, 15(1), 16(1) and 16(2).

Article 14 guaranteed equality to all: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” That was the fundamental guarantee.

Article 15(1) made that guarantee specific in one particular:” The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Article 15(2) guaranteed equal access for everyone to public facilities like wells, restaurants etc.

Article 15(3) contained a proviso provided: “Nothing in this article shall prevent the State from making any special provision for women and children.” Notice again: the only categories for which special provisions were envisaged were women and children. In particular, notice that no exceptions were envisaged on the basis of castes.

Article 16(1) made the fundamental guarantee of equality. “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.”

Article 16(2) did for governmental employment what Article 15(1) did for a citizen’s living in general: “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 of, any employment or office under the State.”

Article 16(4) contained a proviso, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward 5 class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

Therefore to sum up what the Constitutional framers provided we may say:

(a)The fundamental guarantee in every provision was of equality, of non- discrimination.

(b)  Caste was most consciously eschewed: the proviso to Article 15(1) spoke only of   women and children ; Article 16(4) spoke only of “any backward class of citizens.”

(c)Where caste was mentioned, it was only to prohibit discrimination on grounds of caste.

(d)  Where ‘equality’ was made specific in Article 16(1) in regard to employment under the State, for instance the expression that was used was ‘equality of opportunity’, an expression that, has been buried deep under the rhetorical flourishes of progressives.

Reservations and Judiciary

Lot of judgments regarding reservations have been modified subsequently by Indian parliament through constitutional amendments. Some judgments of Indian judiciary has been flouted by state and central Governments. Given below are the major judgments given by Indian courts and its implementation status[1] [2]:

In, M R Balaji v Mysore[3] (1963)  Court has put 50% cap on reservations in Almost all states except Tamil Nadu (69%, Under 9th schedule) and Rajasthan (68% quota including 14% for forward castes, post gujjar violence 2008) has not exceeded 50% limit. Tamil Nadu exceeded limit in 1980. Andhra Pradesh tried to exceed limit in 2005 which was again stalled by high court.

In 1992, Supreme court in Indira Sawhney & Ors v. Union of India[4] upheld Implementation of separate reservation for other backward classes in central government job and this was  judgement implemented. Its landmark case regarding Indian reservation policy. In this case  SC held following decision:-

  • Implementation of separate reservation for other backward classes in central government job;
  • Ordered  to exclude Creamy layer of other backward classes from enjoying reservation facilities. All states except Tamil Nadu implemented. Recent Reservation bill for providing reservations to other backward classes in educational institutions also has not excluded Creamy layer in some states. (Still under the consideration of Standing committee);
  • Ordered to restrict reservations within 50% limit. All states except Tamil Nadu followed;
  • Declared separate reservations for economically poor among forward castes as invalid.            Judgement implemented.

In Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors.[5], it was held that right to establish educational institutions can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g),  but this was overruled in T.M.A. Pai Foundation v. State of Karnataka[6] and in P.A.Inamdar v. State of Maharashtra [7] Supreme court ruled that reservations cannot be enforced on Private Unaided educational institutions.

Positive Aspect of Reservation

1)     Reservations are a political necessity in India because vast influential sections of voting population see reservations as beneficial to themselves. All governments have supported maintaining and/or increasing reservations. Reservations are legal and binding. As shown by Gujjar agitations (Rajasthan, 2007–2008), increasing reservations is also essential for peacekeeping in India.

2)     Although Reservation schemes do undermine the quality of education but still affirmative Action schemes are in place in many countries including USA, South Africa, Malaysia, Brazil etc. It was researched in Harvard University that Affirmative Action programmes are beneficial to the under-privileged.[8] The studies said that Blacks who enter elite institutions with lower test scores and grades than those of whites achieve notable success after graduation. They earn advanced degrees at rates identical to those of their white classmates. They become more active than their white classmates in civic and community activities.[9]

3)     Although Reservation schemes do undermine the quality of education but still they are needed to provide social justice to the most marginalized and underprivileged is our duty and their human right. Reservation will really help these marginalized people to lead successful lives, thus eliminating caste-based discrimination which is still widely prevalent in India especially in the rural areas. (about 60% of Indian population stays in Villages)

Negative Aspect of Reservation

  1. Caste Based Reservation only perpetuates the notion of caste in society, rather than weakening it as a factor of social consideration, as envisaged by the constitution. Reservation is a tool to meet narrow political ends.
  2. Allocating quotas is a form of discrimination which is contrary to the right to equality.
  3. The policy of reservation has never been subject to a widespread social or political audit. Before extending reservation to more groups, the entire policy needs to be properly examined, and its benefits over a span of nearly 60 years have to be gauged.

Suggestions

  1. Reservation decisions has to be taken based on objective basis
  2. The number of seats should be increased in the prestigious higher education institutes (such as IITs).
  3. Government should announce long term plan to phase out reservations.
  4. Government should promote inter-caste marriages [10] in big way [11] for abolition of caste system as initiated by Tamil Nadu.
  5. This is because the basic defining characteristic of the Caste system is endogamy. It has been suggested that providing reservations to children born of inter-caste marriages will be a surer way of weakening the caste system in society.
  6. Reservations should be based on economic status instead of caste-based-reservations (But the middle class who get salaries will suffer and all the landlords and business tycoons can enjoy the benefit)
  7. People who are tax payers or children of tax payers should not be eligible for reservation. This is will ensure that benefits reach poorest of the poor and India will achieve social justice. The people opposed to this idea say that this will encourage people not to pay taxes and will be an injustice to those who pay taxes honestly.
  8. Reservation on the collective salary of family, that is salary of husband and wife, and incomes derived from all other sources like gifts or income from joint family property.
  9. Second is Benefit of the Reservation for only first 2 children.

10. Creation of online database so every Indian will know who is, which family is enjoying the benefits of reservation in education or job or women reservation , or any type of reservation which our Intelligent political business houses introduce in India.


[1] www.savebrandindia.org

[2] IndianExpress.com :: Court, quota and cream

[3] AIR 1963 SC 649

[4] 1993 SC 477 : 1992 Supp (3)SCC 217

[5] (1993 (1) SCC 645)

[6] (2002) 8 SCC 481

[7] 2005 AIR(SC) 3226

[8] Information on U-M Admissions Lawsuits

[9] Study of Affirmative Action at Top Schools Cites Far-Reaching Benefits

[10] Statistical Hand Book – Social Welfare

[11] The Hindu : Tamil Nadu / Tirunelveli News : Assistance distributed

 

Article by-

Jai Prakash Meena

Student, University Five Year Law College, University of Rajasthan, Jaipur

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

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