Indian Reservation System not a Fundamental Right?

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By Prabhjot Singh

Introduction

Reservation in India is a system of affirmative action that provides representation for historically and currently disadvantaged groups in Indian society in education, employment and politics. Reservation is basically a system through which the economically and socially backward people living in the society gets supreme opportunities in both educational and job related fields, this was basically inserted by Sir B.R. Ambedkar in the constitution to maintain the equilibrium between the people living in the society. So, that the difference could be easily eradicated. Enshrined in Article 15 and 16 of the Indian Constitution, it thoroughly allows the Indian government to set quotas to ensure any “Socially and educationally backward classes of citizens” is properly represented in public life and so that they could easily survive their lives without any problem.

Reservation is primarily given to 3 groups- Scheduled castes, Scheduled tribes and Other Backward Classes, abbreviated as SCs, STs and OBCs respectively. These are those groups that have faced social and economic discrimination in the past and or the present and were severely under-represented in public life. Originally reservation was only given to SC’S AND ST’S but was later extended to OBC’S in 1987 after the implementation of the Mandal Commission Report. There are income caps on EWS (Economically Weaker Sections) and OBC’S (Other Backward classes) and no income limits exist for members of the scheduled castes and scheduled tribes. This particular article aims to throw light on the system of reservation in India, its historical background, schemes, castes and whether or not reservation in India is a fundamental right.

History

Before Independence

Quota systems favouring certain castes and other communities existed before independence in several areas of British India. Demands for various forms of positive discrimination had been made for example in 1882 and 1891. Shahu, the Maharaja of the princely state of Kolhapur, introduced reservation in favour of Non-Brahmin and backward classes much of which came into force in 1902. He provided free education to everyone despite of religion or caste. He also opened several hostels to make it easier for them to receive it.

He also tried to ensure that people thus educated were suitably employed and he appealed both for a class free India and the abolition of untouchability. His 1902 measures created 50% reservation for backward communities.

The British Raj introduced elements of reservation in the Government of India Act, 1909 and there were many other measures put in place prior to independence. The Depressed classes, roughly corresponding to the ST’s and SC’s were assigned a number of seats to be filled by election from constituencies in which only they could vote , although they could also vote in other seats . The proposal was controversial: Mahatma Gandhi fasted in protest against it but many among the depressed classes including their leader B.R Ambedkar favoured it .After negotiations Gandhi reached an agreement with Ambedkar to have a single Hindu electorate with Dalits having seats reserved within it.

After Independence

After the Independence of India in 1947, significant steps were taken in the favour of ST’s and SC’s and after the 1980’s in favour of OBC’s and in 2019 for poor general category. The country’s affirmative action programme was launched in 1950 and is the oldest such programme in the world.

In 1954, The Ministry of Education suggested that 20% of places should be reserved for the SC’s and ST’s in educational institutions with a provision to relax minimum qualifying marks for admission by 5% wherever required. A significant change began in 1979 when the Mandal Commission or the socially and educationally backward classes commission was established to assess the situation of the socially and educationally backward classes. The commission did not have exact population figures for the OBC’s and so used data from the 1931 census, thus estimating the group’s population at 52%. The Constitution of India states in Article 15(4), nothing in article 15 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 of or for the scheduled castes and Scheduled Tribes. Article 46 of the constitution states that “The state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the scheduled castes and the scheduled tribes and shall protect them from social injustice and all forms of exploitation.

The Supreme Court of India ruled in 1992 that reservations could not exceed 50%, anything above which it judged would violate equal access as guaranteed by the constitution. However the recent amendments of the constitution exceeds 50% and also these are state laws that exceed this 50 percent limit and these are under litigation in the Supreme Court.

Reservation Schemes

 In Employment

A fixed percentage of India’s government and public sector jobs are made exclusive for categories of people largely based on their caste or tribe. In 1995, the 77th Amendment to the constitution was made to amend Article 16 before the 5 year period expired to continue reservations for SC/ST’s in promotions. It was further modified through the 85th amendment to give the benefit of consequential seniority to SC/STs candidates promoted by reservation.

The 81st amendment was made to the constitution to permit the government to treat the backlog of reserved vacancies as a separate and distinct group to which the ceiling of 50% did not apply. The 82nd Amendment inserted a provision in article 335 to enable states to give concessions to SC/ST candidates in promotion.

In 2007, the government of Uttar Pradesh introduced reservation in job promotions. However citing Supreme Court decision, the policy was ruled to be unconstitutional by the Allahabad High Court in 2011. The decision was challenged in the Supreme Court which upheld it in 2012 by rejecting the government’s argument because it failed to furnish sufficient valid date to justify the move to promote employees on a caste basis.

In Education

In India, scholarships or student aid is available for SC’s, ST’s, OBC’s, women, Muslims and other minorities. Only about 0.7% of scholarships or student aid in India is based on merit given the grossly inadequate representation of above mentioned categories in employment and education due to historic, societal and cultural reasons.

New rules implementation of UPA government do not provide scholarships scheme and reservation quota of students and employees of colleges under central university and state university approved by the UGC.

Judicial Scrutiny of Reservation

  1.  The State of Madras vs SMT. Champlakam Doralirajan (1951) case was the first major verdict of the Supreme Court on the issue of reservation. The case led to the first amendment in the constitution.
  2. The supreme court in the case pointed out 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.
  3. In Indra Sawhney v. Union of India (1993) case the

 Court examined the scope and extent of article 16(4).

  • The court has said that the creamy layer of OBC’s should be excluded from the list of beneficiaries of reservation. There should not be reservation in promotions and total reserved quota should not exceed 50%
  • The supreme court in Monogaraj v. Union of India 2006 case while upholding the constitutional validity of art 16(4A) held that any such reservation policy in order to be constitutionally valid shall satisfy the following conditions.
  • The SCs and STs’ community should be socially and educationally backward.
  • The SCs and STs communities are not adequately represented in public employment
  • Such reservation policy shall not affect the overall efficiency in the administration.

Need for reservation

  1.  The most important need for reservation is to eradicate the historical injustice faced by backward castes in the country so that they can be easily treated
  2. To provide a level playing field for backward section as they cannot compete with those who have had the access of resources and means for centuries.
  3. To ensure that there is adequate representation of backward classes in the services under the state.
  4. For advancing the backward classes so as in the era of modernization they don’t remain behind the line.
  5. To ensure equality as basis of meritocracy in all people must be brought to the same level before judging them on the basis of merit.

Arguments against reservation

  1.  Reservation in state services led to divisions and enmity among government employees, violating the atmosphere at workplace.
  2. Reservation kills talent as for the socially backward castes it is quite easy to get the jobs at half of the passing marks.
  3. Reservation was introduced to ensure that the historically underprivileged communities were given equal access to resources but irrespective of the economic progress they continue to remain socially disadvantaged.
  4. Reservation destroys self-respect, so much that the competition is no longer on to determine the best out the most backward.
  5. Reservations are the biggest enemy of meritocracy which is the foundation of many progressive countries
  6. It has become a tool to meet narrow political ends through invoking class loyalties and primordial countries.
  7. The dominant and elite class within backward castes has appropriated the benefits of reservation and the most marginalised within the backward castes have remain marginalised.
  8. Reservation has become the mechanism of exclusion rather than inclusion as many upper caste poor are also facing discrimination and injustice which breeds the society.

Is Reservation holding back Talent?

In many states of India, it has been seen that the reservation system is holding back the talent as according to a survey 93% of those people who has worked hard for central government jobs lacks chances in the public sector just because they don’t have any reservation quotas which can easily give them a job. Reservation was primarily aimed to give poor and marginalized people a chance to stand out in the public biscuit has rather became a golden biscuit for rich to be more richer  and poor to be substantially more poorer.

Supreme Court Verdict

  1. All political parties from Tamil Nadu had filed a writ petition in the Supreme Court seeking direction to the centre to implement 50 percent other backward classes (OBC) reservation in the all India NEET seats surrendered by the state.
  2. They have accused the centre of “violating the right of the people to have a fair education” By neither implementing the 50 percent quota for OBC nor providing 27 percent reservation for OBC candidates in other states for the All India quota seats.
  3. However the Supreme Court pointed that a writ petition under art 32 of the constitution can be filed only in case of violation of fundamental rights.
  4. Hence, as an instance the Supreme Court observed that right to reservation is not a fundamental right.

Conclusion

The conclusion that came out of this article is the reservation should be an option rather than a golden opportunity for those who are already rich and wealthy, it is crystal clear that reservation is not a fundamental right and hence should not be granted on the basis of a right or an opportunity. Reservation should be there to protect the poor and marginalized people who are generally unable to grab up the opportunities enshrined by the government, there should be quotas on the basis of income groups and not on the basis of caste or religion.

References

 “Indra Sawhney Etc. vs Union of India And Others, Etc. on 16 November, 1992”. IndianKanoon.org.

 “Educational Safeguards”. Department of Education. Government of India. Archived from the original on 19 June 2009. Retrieved 27 November 2011.

Eighty First Amendment”. Indiacode.nic.in. 29 August 1997. Retrieved 19 November2011.

 “Human Development Report 2016” (PDF). UNDP. p. 119. Retrieved 21 March 2017.

^“Eighty Second Amendment”. Indiacode.nic.in. Retrieved 19 November 2011

Joseph, Manu (23 August 2004). “What If Reservations Had Come To An End In 1960?”Outlook. Retrieved 10 April 2018

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