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.