Reservation Policy In India : Really Providing Justice Or Just A Namesake

By | May 3, 2020
Reservation Policy In India

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The theme of Reservation Policy usually triggers controversies and evokes passionate reactions and debates amongst both adherents and detractors. Irrespective of the context in which it is invoked, the philosophical content of the idea is essentially contestable and complex. The Reservation policy debate is not between persons who are “Pro equality” and others who are “Anti-equality”. Both the most ardent advocates of Reservation Policy and its most vehement foes loudly proclaim their allegiance to the ideal of equality. The recent countrywide debate, discussion and the proceedings in the Parliament, when the Women Reservation Bill was introduced, has once again brought the concept of reservation in Indian politics into the limelight. The issue of reservation, however, is not an alien concept to the India Society. In fact, it has been in operation prior to our independence.

Introduction

Indian society is one with immense cultural and social diversity. It is often dealt with pride when it comes to the nation’s colourful cultural diversity. Hence, economic and societal disparities are in deed despairingly vast. India is home to a variety of people ranging differently on the basis of language, religion, caste, community and race. Due to the multiplicity of social division, there arises exploitation of one section over the others. A result of which is sections of Indians being identified as backward, lower and underprivileged. Therefore, social leaders and activists have been working on the upliftment and equality of these downtrodden sections of the society. Ambedkar and Gandhi were the ones who specifically worked for the upliftment of these communities and wanted to give them socio-economic development.[1]

The Constitution of India has been successful in providing ‘reservation’ to deliver justice to the socio-economically vulnerable sections so that they can be brought at par with others. For centuries, the downtrodden have been kept away from the social life of the society. Due to this, not only are they discriminated, but also denied education, access to public utilities, places of worship and other important places. Therefore, the Constitution kept the concept of ‘equality’ in mind so that everyone could be treated equally without discrimination irrespective of their race, religion, caste, creed or community. In consequence of this, they devised an approach of ‘preferential treatment’ that would favour these weaker sections of society when it comes to reservation policy in India.

Hence, as one of the preambular goals was the achievement of economic, political, and most importantly, social justice. In the heart of the Constitution, the state is forbidden to discriminate on the grounds of caste, language, sex, residence and place of birth.[2]  The Constitution also has adopted Directive Principles of state policy, which work to achieve socio-economic equality among all individuals. It has directed the state to achieve reasonable means of livelihood to all individuals and to encourage economic and educational interests of the downtrodden sections, particularly that of the Scheduled Tribes and the Scheduled Castes to protect them from injustice inflicted by the society. To overcome the evil of ‘Untouchability’, the Constitution has also abolished it.[3]

Our Constitution has reserved seats in institutions of education and public sector to these groups of people:

  1. Individuals who are educationally and socially backward citizens,
  2. Scheduled Tribes and
  3. Scheduled Castes.

Hence, a percentage of seats are reserved for SC, ST and OBC in all departments of the government, public sector employment as well as all public and private institutions of education. The framers of the Constitutions were of the belief that these sections have always been on the receiving end of the atrocities afflicted by other sections of the society and therefore there was a need to ensure that they do not face inequalities.

Judicial Interpretation

In the case of Dorairajan v. St. of Madras,[4] there were reservations made by the government in state engineering and medical colleges for certain sections in different proportions on the basis of race, religion and caste. It was questioned as being unconstitutional. The government defended itself by stating Article 46 of the Constitution, which seeks in the promotion of weaker sections of the society. But later, the Apex Court struck it down as being unconstitutional as it violated the provisions contained in Article 15 and held that directive principle does not have an overriding value over fundamental rights.

As there was no limit fixed on the extent to which seats could be reserved, the Apex Court in the case of Balaji v. St. of Madras,[5] held the reservation of 68% seats by the state government for the admission to all engineering, medical and other technical colleges as ultra vires and unconstitutional. Therefore, the Supreme Court observed that the limit of 68% was put without any reasonable grounds and was excessive in nature. Hence, the court fixed the limit to 50% reservation in public employment and educational institutions. The point to ponder over is that the 55-year-old 50% reservation policy is still in vogue even though the population of these sections has changed invariably.

Further, in the case of T. Devadasan v. Union of India[6],  the question that was arisen before the court was whether the 50% reservation policy laid down in Balaji case applicable to the posts which were carried forward for the next year also. A Carry Forward Rule was applied, due to which the reservation of the posts went upto 64%. This was found to be unconstitutional and against the provisions of the earlier Apex Court judgement. It was held that it would disintegrate the rights enshrined in Article 14 and 16(1) of the Constitution.

Finally in the landmark judgment of Indra Sawhney v. Union of India,[7] the 50% rule was upheld by the Apex Court and it was observed that, no matter what, the percentage of the reservation shall not exceed 50% as was laid down in Balaji’s case. The Court also mentioned the carry forward rule and stated that any reservation made above 50% will be held unconstitutional and violative of Article 16(4) of the Constitution. For safeguarding the interests of the SC/ST’s, an Amendment was brought in the Constitution and clause 4A was inserted in Article 16 enabling the state to provide reservation where they are not adequately represented.[8]

How valid was the (Ninety-third) Amendment Act, 2005 and the Central Education Institutions (Reservation in Admissions) Act, 2006 :

A plethora of criticism and questions were pointed to the Apex Court in relation to a reservation in Ashok Kumar Thakur v. Union of India.[9] In this case, the validity of the 93rd Amendment and the Central Education Institution Act, 2005 were questioned because they provide reservation to SC, ST and OBCs in public educational institutions as well as private unaided schools. The Apex Court has upheld the said amendment and the Act as they work in facilitating social justice and equality to SC/ST/OBCs. The other questioned raised was regarding the removal of creamy layer. The Court responded in a positive manner by removing the creamy layers from socially and economically backward classes with regards to the reservation policy. However the same was not applicable to SC/STs as it was believed that socially and educationally backward classes are economically advanced or educationally forward as compared to Scheduled Caste and Scheduled Tribes.

Another issue that arose was that of not specifying the prescribed time limit for the operation of the central Act. It was contended that if no time limit was prescribed, and if the affirmative action would continue for an indefinite period, then it will result in reverse discrimination instead of protective discrimination. To vain, the Court struck down the appeal and held the act to be constitutionally valid and directed the central government to review the situation of these classes after a period of ten years.

Conclusion

India, being a country full of social diversity, the interest of the weaker sections needs to be promoted and affirmative action needs to be taken in that consequence. Due to this, the people from these classes will be able to compete with the other classes and outshine them for good, disappearing the attitude of them being inferior. Further, the years old 50% rule should also be reviewed taking into consideration the current scenario. The view about the single post also needs to be relooked at as there are many departments where only one seat for a post is available. This is something very unacceptable and unreasonable and is against the mandate of social justice.

Thus the following reforms are sought to be brought to ensure social justice to the weaker strata of society in the right sense.

  1. The current Articles 15(4), 16(4) and 29(2) till date has failed to impose a positive obligation on the government to propose any provision for the upliftment of the backward classes.
  2. The 50% rule which continues to be in vogue should be viewed by the Parliament and an adequate reservation should be fixed keeping into mind the current situation of the backward classes.
  3. An Amendment shall also be made regarding the policy of reservation in the private sector as well as Rajya Sabha.
  4. Creamy Layer of the Schedule Castes and Scheduled Tribes should be excluded from the benefits as they also stand at an equal footing with other classes due to economical backup and educational support.

[1] Basavaraju, C. “RESERVATION UNDER THE CONSTITUTION OF INDIA: ISSUES AND PERSPECTIVES.” Journal of the Indian Law Institute, vol. 51, no. 2, 2009, pp. 267–274. JSTOR, www.jstor.org/stable/43953443. Accessed 29 Apr. 2020.

[2] INDIA CONST. Art. 15(1), 16(2) and 29(2).

[3] INDIA CONST. Art. 17

[4] AIR 1951 SC 226.

[5] AIR 1963 SC 649

[6] AIR 1964 SC 179

[7] AIR 1993 SC 447.

[8] The Constitution (Seventy-Seventh Amendment) Act, 1995.

[9] AIR SC 2008.


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