POLITY

Reservation

Reservation

Introduction

  • Definition – Reservation in India is a system of affirmative action that provides representation and opportunities for development of historically and currently disadvantaged groups in Indian society in education, employment and political representation.

  • It is a form of positive discrimination, created to promote equality among marginalized sections, so as to protect them from social and historical injustice and educational backwardness.


Reasons for Increasing Demand for Reservation

  • Popular perception of reservation as a remedy for adverse effects of dysfunctional or ill-conceived development policies.

  • Agricultural distress among farmers.

  • Unemployment among urban youth.

  • Attractive salaries and wages at entry-level in government jobs.

  • Fear of losing privilege.

  • Demands by upper castes for reservation for economically weaker strata.

  • Increasing pressure on educational institutions and limited expansion in capacity.


Reservation in India: A Timeline of Events

Pre-Independence Period

  • Reservation was known and practiced well before Indian independence. It was in place for various communities in Tamil Nadu, Mysore, Kerala, and Kolhapur.

  • The conceptual underpinnings of caste-based reservation can be traced to William Hunter and Jyotirao Phule in 1882.

  • The social justice movements against repression of non-Brahmins peaked in the country in the decade between 1910 and 1920. This escalated the demands for reservation for SC/ST.

  • The first implementation of contemporary style reservation was done in 1932 with the ‘Communal Award’, which provided separate electorates for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans and the Dalits.

  • The Poona Pact (1932) laid the foundation for reservation in electoral seats for depressed classes (Dalits; then Untouchables) within the Hindu fold as part of the Communal Award. It was an agreement between Mahatma Gandhi and B R Ambedkar, after a long period of opposition by Gandhi who considered it a divisive mechanism.


Post-Independence Period

  • The Constituent Assembly of independent India (1950) under Ambedkar provided reservations to Scheduled Castes and Tribes for legislatures for a period of 10 years.

  • A Backward Classes Commission was set up in 1953 under Kaka Kalelkar to identify OBCs. It presented its report in 1955 but did not yield significant results.

  • The Mandal Commission was set up in 1979 and in its report in 1980 it recommended 27 percent reservation for OBCs. Its recommendations were accepted in 1989.

  • Mandal Commission’s recommendations were implemented in 1992 (after Supreme Court verdict).

  • Commission for Economically Backward Classes (CEBC) Report was submitted in 2010.


Important Judgments

  • In the State of Madras v. Smt. Champakam Dorairajan, 1951 the SC addressed reservation for the first time and led to insertion of clause (4) to Article 15 to provide for reservation for SC and ST.

  • In the Minerva Mills Ltd. & Ors v. Union of India, 1980 judgment, the balance between DPSP and FDR was declared part of basic structure of constitution. Therefore reading the Preamble and Articles 13, 14, 16, 38(2) and 46 together, it is evident that state is bound to take appropriate steps to balance the social representation in public services. This provides further gravitas for reservation in public services.

  • In Indra Sawhney v. Union of India, 1992 case the court examined the scope and extent of Article 16(4).
    Creamy layer of OBC was excluded from it.
    It provided for no reservation in promotions (this was overturned in 1995 by Constitutional (77th Amendment) Act), and subsequently by the 81st, 82nd & 85th Amendment Acts.
    It directed that total reserved quota must not exceed 50 %.

  • In M. Nagaraj v. Union Of India, 2006, the SC connected the constitutional validity of Article 16 (4A) (reservation in promotions) to the fulfillment of three conditions regarding SC/ST:
    They should be socially and educationally backward
    They should not have been adequately represented in public employment
    The overall efficiency of administration should not be affected due to such reservation

  • In Jarnail Singh vs Lachhmi Narain Gupta case, 2018 the SC held that reservation in promotion does not require the state to collect quantifiable data on the backwardness of SC and ST. It however extended the exclusion of creamy layer to SC and ST.


Constitutional Basis for Reservation

  • Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST.

  • Article 16(3) provides for reservation of posts in public employment on the basis of residence.

  • Under the Directive Principles of State Policy (DPSP) in Article 45, it is the state’s duty to raise the standards of living and health of backward classes.

  • Under Article 39A of DPSP, states have to ensure justice and free legal aid to Economically Backward Classes.

  • Part XVI of the Constitution deals with reservation of SC and ST in Central and State legislatures.

  • Article 330 and 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively.

  • Article 243D provides reservation of seats for SCs and STs in every Panchayat.

  • Article 233T provides reservation of seats for SCs and STs in every Municipality.

  • Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.


Legislations Related to Reservation

  • A series of Legislations have been made over the years to incorporate new elements of reservation into the constitutional framework.

  • The Constitution (1st Amendment) Act, 1951 added reservation for SC and ST in educational institutions.

  • The Constitution (73rd and 74th Amendment) Acts, 1993 reserved one-third of the seats in all local bodies for women.

  • The Constitution (77th Amendment) Act, 1995 inserted a new clause (4A) in Article 16 to enable the government to provide reservation in promotions.

  • Clause (4A) was modified by the Constitution (85th Amendment) Act, 2001 to provide consequential seniority to SC and ST candidates promoted by giving reservation.

  • The Constitutional (81st Amendment) Act, 2000 added Article 16 (4 B) which in effect nullified the 50 percent reservation ceiling on reservation for SC and ST.

  • Article 15(5) was inserted by the Constitutional (93rd Amendment) Act, 2006 which provided for reservation for backward classes, SC and ST in private educational institutions.

  • The Constitution (103rd Amendment) Act, 2019 provides for reservation for the economically weaker sections in higher educational institutions and government jobs.


Important Features of Reservation

  • It is not a Fundamental Right.

  • It is not an entitlement, but an enabling provision for weaker sections of society. This means that the government is not obligated to implement it and thus exercises discretion.

  • It is however, not an exception to equality; rather it is an important aspect of equality.

  • Reservation is provided to the following in India:
    Historically and Socially Disadvantaged Groups – Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Castes (OBC).
    Economically Weaker Sections (EWS)

  • Reservation is provided in – government educational institutions, government jobs, and Parliament and state legislatures.


Reservation


  • Duration of reservation:
    Reservation was first implemented for a period of 10 years.
    Since then, it has been extended for a period of 10 years by subsequent governments.

  • Carry forward rule – If all the reserved posts (for employment) are not filled in a year for want of suitable candidates from those classes, then the shortfall is to be carried forward to the next year and added to the reserved quota for that year. The same can be done for the next two years. The 1992 SC judgment declared that the carry forward rule was valid so long as it did not exceed 50 percent of total vacancies in a particular year.


Mandal Commission

  • The Moraji Desai government set up the Mandal Commission in 1979 to identify socially or educationally backward classes to address caste discrimination.

  • The commission in its report in 1980 recommended 27 percent reservation for OBC in central government jobs and in public sector undertakings. It also recommended reservation in central educational institutions.

  • It also recommended land redistribution and change in relations of production in order to address root causes backwardness.

  • The total reservation for SC/ST will be 49 percent.

  • After sever opposition in the following years, the commission’s recommendation for OBC reservations for jobs in central government institutions was implemented in 1992 while the education quota was enforced in 2006.


Reservation in Promotions

Important Judgments

  • A.B.S.K Sangh v Union of India, 1985 – The SC upheld reservation of seats in railways and reservation in promotion; also upheld the carry forward rule.

  • Indra Sahwney v. Union of India, 1992 – reservation confined only to initial recruitment and not in promotion. The carry forward rule was upheld but the reserved seats were restricted to not more than 50%.

  • The above was overruled by Constitutional (77th Amendment) Act, 1995 – insertion of clause 4(A) to Article 16.

  • M. Nagaraj v. Union of India, 2006 – conditional validity of Article 16 (4A).

  • Jarnail Singh vs Lachhmi Narain Gupta, 2018 – exclusion of creamy layer of SC & ST from promotional reservation.

  • May 2019 – SC upheld the Karnataka law that allows reservations in promotions for SCs and STs with consequential seniority.
    Consequential Seniority – It is also called accelerated seniority. If a reserved candidate is promoted earlier than the general (senior) candidate, the reserved candidate would be considered senior even after the general candidate is promoted to the same position.

  • Position of Reservation in Promotions according to Mukesh Kumar v. State of Uttarakhand, 2020:
    Right to reservation in promotion is not a fundamental right under Articles 16(4) and 16(4A).
    The court cannot direct the centre or states of makes rules on reservation in promotion; the decision is discretional on part of the government.
    Since it is not a fundamental right and depends on government’s discretion, the state is not obligated to collect quantifiable data showing a community is inadequately represented in public services.


Reservation for EWS

  • The Indra Sawhny Judgment, 1992 held that economic backwardness cannot be the sole criterion for providing reservation.

  • Commission for Economically Backward Classes (CEBC) (Sinho Commission) Report, 2010 – did not recommend reservation for EWS.

  • Despite this, the Legislation – the Constitution (103rd Amendment) Act, 2019 – was passed.
    Government stated that the reservation is based on the Sinho Commission recommendations.

  • Provision – 10 percent quota among General category for economically weaker sections (EWS) in government jobs and educational institutions.

  • The reservation crossed the 50 percent cap mentioned in the 1992 Judgment. However, the government clarification specifies that the cap was only for caste-based reservations.

  • Assessment –
    EWS reservation makes economic situation – a fluctuating indicator – a valid criterion for reservation.
    It alters the original intent of reservation which was to assist in redressing historical and social grievances and educational disadvantages.


Reservation for Women

  • The Constitution (73rd and 74th Amendment) Acts, 1993 reserved one-third of the seats in all local bodies for women. Over the years, 16 states have increased this to 50 percent in panchayati raj institutions.

  • The Women's Reservation Bill [Constitution (108th Amendment) Bill, 2008] was passed by the Rajya Sabha in 2010. It is however still pending in the Parliament as the Lok Sabha never voted on it.
    It provides for reservation of 33% of seats in Lok Sabha and all state legislative assemblies for women.

  • While reservation for women for jobs in government is considered antithetical to equality, it is a necessary policy reform for propelling economic growth and ensuring the sustainability of political empowerment.


Reservation for Religious Minorities

  • The Constitution does not provide for reservation on religious grounds.

  • The government has listed a number of Muslim communities as backward, thus making them eligible for reservation under OBC reservation.

  • Some states like Kerala and Andhra Pradesh however, provide reservation for Muslims in educational institutions. Kerala provides for reservation for Muslims in state government employment.

  • Religious minority educational institutes under Article 30 of the constitution also have 50 percent reservation for Muslim or Christian religions.


Arguments against Reservation

  • Instead of making caste irrelevant over time, reservation has actually led to a perpetuation and reassertion of caste.

  • Historically and socially underprivileged groups continue to remain disadvantaged despite economic progress and educational advancement.

  • Within backward groups, it is the elite who gain benefits from reservation; the most disadvantaged continue to remain so.

  • It is used more as a political tool instead of an enabling and equity-creating provision.

  • Reservation in services leads to caste-based alignments and divisions and enmity between government employees.

  • Reservation goes against meritocracy.

  • It has become a mechanism of exclusion rather than inclusion as many upper caste poor also face discrimination and injustice, which breeds frustration in the society.

  • Reservation impacts self respect as instead of competing for being the best, people compete to be most backward (in order to claim reservation).


Arguments in Favour of Reservation

  • It addresses and rectifies historical and social injustice done on the basis of caste, gender etc.

  • It ensures equity and establishes equality as a requisite for meritocracy by pulling up those who have been pushed to the peripheries.

  • It helps in advancement and upliftment of backward sections.

  • It provides a level playing field for backward sections as they cannot compete with those who have had the access to resources and means for centuries.

  • It ensures adequate representation of marginalized sections in services of the state.


Relevance of Reservation

  • Contrary to upper caste insistence, caste-based discrimination and exploitation continues to be prevalent in India. Modern empowering concepts like that of ‘choice’ have not yet become universal in access and therefore, lower-caste communities feel themselves in the need to assert caste identities and avail enabling provisions like reservation.


Recommendations and Way Forward

  • Reservation can be justified as far as it provides appropriate positive discrimination for the benefit of the backward and marginalized sections of the society.

  • Other methods of social upliftment including scholarships, training, coaching, increased funding, and other welfare schemes should also be developed alongside without singular focus on reservation.

  • Since reservation is not a poverty alleviation scheme, poverty cannot be the basis to provide reservation. Reservation’s intended aims and purposes should drive development in this regard.

  • An in-depth and comprehensive social and political audit of reservation policy should be conducted to better understand its impact on independent India’s social life.

  • A gradual phasing out of reservation should be envisaged and implemented to ensure that it is not used as a political tool, nor to turn people against one another.

  • A more comprehensive scheme of Affirmative Action would be more beneficial than reservations in addressing concerns of social justice.

  • The state must also focus on improving structure and quality of public education as the means to better living standards and sensitization of public regarding evils of caste and gender based discrimination.

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