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DAILY NEWS ANALYSIS

  • 07 November, 2021

  • 7 Min Read

RESERVATION IN INDIA

Context: RESERVATION IN INDIA is an important topic for UPSE GS Paper 2.

The purpose of reservation in India

The two main aims to provide reservation as per the Constitution of India are:

  1. Advancement of Scheduled Castes (SC) and the Scheduled Tribes (ST) or any socially and educationally backward classes of citizens (OBC) or economically weaker sections (EWS) – under Article 15 (4), Article 15 (5), and Article 15 (6),
  2. Adequate representation of any backward class of citizens or economically weaker sections (EWS) in the services under the State. – Article 16 (4) and Article 16 (6)

The extent of Reservation in India

In India, reservation is provided in:

  1. Government Educational Institutions (like IITs, IIMs, etc) – as per Article 15 – (4), (5), and (6)
  2. Government Jobs (like IAS, IPS, etc) – as per Article 16 – (4) and (6)
  3. Legislatures (Parliament, and State Legislature) – as per Article 334
  • Before 2019, the reservation was provided mainly on the basis of social and educational backwardness (caste). However, after the 103rd constitutional amendment in 2019, economic backwardness is also considered.
  • Apart from the reservation quota, additional relaxations like upper-age relaxations, additional attempts, and lower cut-off marks are also provided for various reservation categories.
  • A vacancy reserved for SCs or STs or OBCs cannot be filled by a candidate other than an SC or ST or OBC candidate, as the case may be.
  • As seen from the above table, about 60% of seats are reserved in India –for various sections like ST, SC, OBC, and EWS – with respect to Government jobs and Higher Education Institutions. 3% of seats are also reserved for differently-abled persons across all categories.
  • This also means that only 40% of seats are available under merit. In the merit seats, not only the general category candidates but all other categories like SC, ST, OBC, and EWS can also compete.

Historical Background-

  • William Hunter and Jyotirao Phule in 1882 originally conceived the idea of the caste-based reservation system.
  • The reservation system that exists today, in its true sense, was introduced in 1933 when British Prime Minister Ramsay Macdonald presented the ‘Communal Award.
  • The award made provision for separate electorates for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans and the Dalits.
  • After long negotiations, Gandhi and Ambedkar signed the ‘Poona Pact’, where it was decided that there would be a single Hindu electorate with certain reservations in it.
  • After independence, initially reservations were provided only for SCs and STs.
  • OBCs were included in the ambit of reservation in 1991 on the recommendations of the Mandal Commission.

Judicial Scrutiny of Reservation-

  1. The State of Madras v. Smt.Champakam Dorairajan's (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 favor of a backward class of citizens, no such provision was made in Article 15.
  3. Pursuant to the Supreme Court’s order in the case, the Parliament amended Article 15 by inserting Clause (4).
  4. In the Indra Sawhney v. Union of India (1992) case the court examined the scope and extent of Article 16(4).
  5. The Court has said that the creamy layer of OBCs should be excluded from the list of beneficiaries of reservation, there should not be reservations in promotions, and the total reserved quota should not exceed 50%.
  6. The Parliament responded by enacting the 77th Constitutional Amendment Act which introduced Article 16(4A).
  7. The article confers power on the state to reserve seats in favor of SC and ST in promotions in Public Services if the communities are not adequately represented in public employment.
  8. The Supreme Court in M. Nagaraj 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 three constitutional requirements:
    1. The SC and ST communities should be socially and educationally backward.
    2. The SC and ST communities are not adequately represented in public employment.
    3. Such reservation policy shall not affect the overall efficiency in the administration.
  9. In the Jarnail Singh vs Lachhmi Narain Gupta case of 2018, Supreme Court holds that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes.
  10. The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in the promotion to SC/ST individuals who belong to the creamy layer of their community.
  11. In May 2019 the Supreme Court upheld the Karnataka law that allows reservations in promotions for SCs and STs with consequential seniority.

Mandal Commission

  • In exercise of the powers conferred by Article 340 of the Constitution, the President appointed a backward class commission in December 1978 under the chairmanship of B. P. Mandal.
  • The commission was formed to determine the criteria for defining India’s “socially and educationally backward classes” and to recommend steps to be taken for the advancement of those classes.
  • The Mandal Commission concluded that India’s population consisted of approximately 52 percent OBCs, therefore 27% government jobs should be reserved for them.
  • The commission has developed eleven indicators of social, educational, and economic backwardness.
  • Apart from identifying backward classes among Hindus, the Commission has also identified backward classes among non-Hindus (e.g., Muslims, Sikhs, Christians, and Buddhists.
  • It has generated an all-India other backward classes (OBC) list of 3,743 castes and a more underprivileged “depressed backward classes” list of 2,108 castes.

Mandal Commission Recommendations

  1. Reservation of 27% public sector and government jobs for OBCs for those who do not qualify on merit.
  2. Reservation of 27% for promotions at all levels for OBCs in public service.
  3. The reserved quota, if unfilled, should be carried forward for a period of 3 years and deserved after that.
  4. Age relaxation for OBCs is to be the same as that for SCs and STs.
  5. A roster system should be prepared for the backward classes on the pattern of that for the SCs and STs.
  6. Reservations to be made in PSUs, banks, private sector undertakings receiving government grants, colleges and universities.
  7. The government to make the necessary legal provisions to implement these recommendations.

Indra Sawhney Case of 1992-

  • In the Indra Sawhney Case of 1992, the Supreme Court while upholding the 27 percent quota for backward classes, struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.
  • Supreme Court in the same case also upheld the principle that the combined reservation beneficiaries should not exceed 50 percent of India’s population.
  • The concept of ‘creamy layer’ also gained currency through this judgment and provision that reservation for backward classes should be confined to initial appointments only and not extend to promotions.
  • Recently, the Constitutional (103rd Amendment) Act of 2019 has provided 10% reservation in government jobs and educational institutions for the “economically backward” in the unreserved category.
  • The Act amends Articles 15 and 16 of the Constitution by adding clauses empowering the government to provide reservation on the basis of economic backwardness.
  • This 10% economic reservation is over and above the 50% reservation cap.

Some of the prominent laws framed for reservation policies are listed below:-

  • Article 15(4) – 1st Amendment,1951 – Special provision for Advancement of Backward Classes.
  • Article 15(5) – 93rd Amendment, 2006 – Provision of Reservation for Backward, SC, and ST classes in private educational institutions.
  • Article 16(3) – Reservation of posts in public employment on the basis of residence
  • Article 16(4) – Reservation in public employment for backward classes.
  • Article 45 – Under DPSP, states have a duty to raise the standards of living and health of backward classes.
  • Article 39 A – Under Directive Principles of State Policy – states have to ensure justice and free legal aid to Economically Backward Classes.
  • The Constitution was amended by the Constitution (77th Amendment) Act, 1995 and a new clause (4A) was inserted in Article 16 to enable the government to provide reservation in promotion.
  • Later, clause (4A) was modified by the Constitution (85th Amendment) Act, 2001 to provide consequential seniority to SC and ST candidates promoted by giving reservation.
  • Constitutional 81st Amendment Act, 2000 inserted Article 16 (4 B) which enables the state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year.
  • 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 330 and 332 provide for specific representation through the 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 SCs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.

102nd Amendment Act and its issues-

Introduction

  • In the judgment that declared the Maratha reservation unconstitutional, a Constitution Bench of the Supreme Court dealt with another issue.
  • By a 3:2 majority, it ruled that after the passage of the 102nd Constitution Amendment Act in 2018, the States do not have any power to identify ‘socially and educationally backward’ (SEBC) classes.
  • The Union government argued that it was never its intention to deprive State governments of their power to identify SEBCs, but the Court interpreted the bare text of the Amendment to the effect that only the President can publish a list of backward classes in relation to each State and that only Parliament can make inclusions or exclusions in it.

What does the 102nd Amendment say?

NCBC:

  1. The Amendment established a National Commission for Backward Classes by adding Article 338B to the Constitution.
  2. The five-member commission was tasked with:
    1. Monitoring safeguards provided for socially and educationally backward classes,
    2. Giving advice on their socio-economic development,
    3. Inquiring into complaints and making recommendations, among other functions.
    4. Significantly, it was laid down that the Centre and the States shall consult the Commission on all policy matters concerning the SEBCs.

Article 342A

  • The Amendment also added Article 342A, under which the President shall notify a list of SEBCs in relation to each State and Union Territory, in consultation with Governors of the respective States.
  • Once this ‘Central List’ is notified, only Parliament could make inclusions or exclusions in the list by law.
  • This provision is drafted in exactly the same word as the one concerning the lists of Scheduled Castes and Scheduled Tribes.

Definition of SEBC

  • Further, a definition of ‘SEBCs’ was added to the Constitution — ‘SEBC’ means “such backward classes as are so deemed under Article 342A for the purposes of this Constitution”.

Why did this Amendment come up for judicial interpretation?

  • The reservation for the Maratha community was challenged in the Bombay High Court on various grounds.
  • One of the grounds was that the Act creating the Maratha quota through a new category called ‘SEBC’ was unconstitutional because after the introduction of the 102nd Amendment, the State legislature had no power to identify any new backward class.
  • Separately, a writ petition was also filed in the Supreme Court questioning the validity of the Amendment as it violated the federal structure and deprived the States of their powers.
  • In this context, the court had to examine the validity of the Amendment.

What were the rival contentions?

  • The crux of the issue was whether the State government’s role in identifying backward classes had been denuded by the Amendment.
  • The Union government said Parliament’s intent was only to create a Central List that would be applied only in the Central government and its institutions.
  • It had nothing to do with the State Lists of backward classes or the State governments’ powers to declare a community backward.
  • Those who questioned it contended that the effect of the Amendment was that only the President, or the Union government, was authorised to make a list in relation to each State, and thereafter, any change in it would be made only by Parliament.

How did the Supreme Court reach these conclusions?

  • Justice S. Ravindra Bhat, with two others concurring with him, adopted a literal interpretation of the 102nd Amendment, holding that there was no ambiguity in its drafting that warranted a “purposive interpretation”.
  • Writing for them, Justice Bhat cited three main reasons.
    • One, the text was clear that the President alone could notify the list, and subsequent changes could be made only by Parliament by law.
    • Two, the text was identical to the provisions governing the National Commission for Scheduled Castes and the procedure to identify SCs was exactly the same, which led to the conclusion that Parliament intended to “replicate” the same process for backward classes, too.
    • Third, a definition clause was added to the effect that only a class found in the list notified by the President under Article 342A was an SEBC.
      • Further, the definition was for “the purposes of the Constitution”, which meant that it was to apply to the Constitution as a whole, including Article 15(4) and Article 16(4), which enable special provisions for backward classes, including reservation in public services, and are also implemented by the States.
  • The Supreme Court’s judgment also drew on deliberations before a Rajya Sabha Select Committee that showed that the Centre had rejected suggestions from members who demanded that a specific clause be added saying that States would continue to have the power to identify SEBCs.
  • Justice Ashok Bhushan, with another judge agreeing with him and constituting the minority on this point, accepted the Union government’s position that it was never its intention to deprive the States of their powers.
  • They held that the ‘Central List’ was only for use by the Centre in reservations for jobs and institutions under the Union government, and will not apply to States.

Maratha quota law-

  • A five-judge bench, led by Justice Ashok Bhushan, set up to hear the challenge to the Maratha quota law, decided not to confine the question of reservation spilling over the 50% limit to just Maharashtra.
  • The Bench expanded the ambit of the case by making other States party and inviting them to make their stand clear on the question of whether the reservation should continue to remain within the 50% boundary or not.
  • Justice Bhushan, leading the Constitution Bench, decided to start the hearing from March 15, giving time for the other States to prepare their arguments.
  • The court, meanwhile, framed a series of questions, which include whether the Indira Sawhney verdict of 1992, fixing 50% limit on quota, needs to be relooked by a larger Bench of more than nine judges.
  • Another question is whether the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018, which provides 12% to 13% quota benefits for the Maratha community, thus taking the reservation percentage in the State across the 50% mark, was enacted under “extraordinary circumstances”.

Arguments Offered By Supporters of Reservation:

  • a. Reservations are a political necessity in India
  • b. Although Reservation schemes do undermine the quality of education but still Affirmative Action has helped many if not everyone from under-privileged and/or under-represented communities to grow and occupy top positions in the world’s leading industries and institutions.
  • c. Although Reservation schemes do undermine the quality, they are needed to provide social justice to the most marginalized and underprivileged which is their human right.
  • d. Meritocracy is meaningless without equality. First all people must be brought to the same level, whether it elevates a section or decelerates another, regardless of merit.
  • e. Reservations have only slowed down the process of “Forward becoming richer and backward becom­ing poorer”.

Arguments Offered by Anti-Reservationists:

  • a. Intellectuals and Philanthropists agree that reservations will divide India Reservation is similar to internal partition because, in addition to being a form of ethnic discrimination, it also builds walls against inter-caste and inter-faith marriages. The vast majority of voters are discriminating against a newly created minority.
  • b. Reservations are the biggest enemy of meritocracy. By offering reservation through relaxed entry criteria, we are fuelling inflation of moderate credentials as opposed to the promotion of merit based education system, which is the foundation of many progressive countries. Meritocracy should not be polluted by injecting relaxation of entry barriers, rather should be encouraged by offering financial aids to the underprivileged although deserving candidates only. Today the NTs and IIMs hold a high esteem in the global scenario due to their conservation of merit.
  • c. 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.
  • d. There is great confusion in the “pre-reservation camp”. While they clamor for 33% reservation for women in parliament and state legislatures [and do not accept caste quotas as part of women’s quotas], they do not want special consideration for women in quotas in higher education. This is implicit acceptance of the fact that there are multiple factors of exclusion and discrimination at work in society.
  • e. The policy of reservation has never been subject to a widespread social or political audit. Before extending reservations 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.
  • f. Poor people from “forward castes” do not have any social or economical advantage over rich people from a backward caste.
  • g. Combination of factors like Wealth, Income, and Occupation, etc will help to identify real needy people. Most often, only the economically sound people make use of most of the seats reserved for “back­ward” castes, thus making the aim a total failure.
  • h. There is fear that reservation once introduced will never be withdrawn even if there is proof for the upliftment of backward classes, due to political issues. For example, in Tamil Nadu, forward castes were able to secure only 3% of total seats (and 9% in Open Competition) in professional institutions at the Undergraduate level as against their population percentage of 13%. This is a clear case of reverse discrimination.
  • i. Many cite the Mandal Commission report while supporting the idea of reservations. According to the Mandal commission, 52% of the Indians belong to the OBC category, while according to National Sample Survey 1999-2000, this figure is only 36% (32% excluding Muslim OBCs).
  • j. This policy of the government has already caused an increase in brain drain and may aggravate further. Under graduates and graduates will start moving to foreign universities for higher education.

EDITORIAL- Reservation on quota

Why did the Madras High Court invalidate the separate reservation of 10.5% for the Vanniyar community?

The story so far: On November 1, the Madras High Court declared unconstitutional a Tamil Nadu government law, enacted in February 2021 when the AIADMK was in power, that reserved 10.5% of jobs in public services and seats in educational institutions for the Vanniyars, a most backward community. The demand for an exclusive quota for the community has been spearheaded for long by the Pattali Makkal Katchi.

What was the reservation eligibility of Vanniyars prior to being given a separate quota?

  • The Vanniyars were in the backward classes list for many years. The community, constituting a significant percentage in the State’s northern districts, consists predominantly of agricultural labourers.
  • In 1987, the Vanniyar Sangham launched an agitation demanding 20% separate reservation. In 1989, the demand was partially conceded. The BC quota was then at 50%.
  • This was sub-divided and a 20% segment was earmarked for ‘Most Backward Classes and Denotified Communities’. The Vanniyars were included in the Most Backward Classes list.
  • The expectation was that they would be the principal beneficiaries in this 20% segment, though 109 other castes were in the MBC/DNC category (The number has risen to 116 now).
  • The Vanniyars have been arguing that they are still not getting enough opportunities in proportion to their population.

How was the separate reservation implemented?

  • On February 26, 2021, the Assembly passed a special Act that divided the ‘Most Backward Classes/Denotified Communities’ category into three parts. Of the total, the largest share of 10.5% was specified as exclusive to the Vanniyakula Kshatriya and its various sub-castes.
  • The DNC sub-division was to have 7%, while the remaining 2.5% was meant for the rest of the MBCs. The primary justification for the percentage was that the Second Backward Class Commission had put the Vanniyar population at 65 lakh in 1983, or 13.01% of the then total population.
  • In 2012, the then chairman of the State Backward Class Commission recommended that based on this figure, reservation of 10.5% would be appropriate for the Vanniyars.
  • Therefore, it was decided to make this internal reservation within the MBC quota. However, critics say the Commission chairman’s opinion was not supported by the other members and was, therefore, not acted upon all these years.

What were the reasons for the court’s judgment?

  • The exclusive quota for one community was criticised on the ground that it was done with an eye on the Assembly election. It was also contended that the government acted hastily as it had only a couple of months earlier appointed a commission under a retired High Court judge to compile quantifiable data on all castes so that the State could justify its 69% total reservation, but did not wait for its report.
  • The Bench of Justices M. Duraiswamy and K. Murali Shankar ruled that the Act was unconstitutional mainly on the ground that the Assembly had no legislative competence to pass the law on the date of the enactment.
  • This was because the 102nd Amendment to the Constitution (which created the National Backward Class Commission and empowered the President to notify the backward classes list for each State) was in force in February 2021.
  • The Supreme Court had ruled, again in the Maratha reservation case, that the Amendment took away the power of the States to notify or identify OBCs. Later, the 105th Amendment made it explicit that the States could make changes in their lists.
  • The other ground was that the separate reservation for one caste amounted to discrimination against all the other castes in the same MBC category.
  • Further, the State had produced no quantifiable data to back its claim that the Vanniyars were so far behind the other communities in the list that they deserved exclusive treatment. In the absence of such data, it amounted to legislation solely on the ground of caste, and not because members of that caste constituted a separate class.

What are the effects of the verdict?

  • Being a politically sensitive matter involving a restive community, the State government is planning to appeal to the Supreme Court. Whether the same quota will be upheld without quantifiable data is a moot question.
  • The judgment also contains a finding that any law making changes to the distribution of quotas under various categories would require an amendment to the State’s 1994 Act protecting the overall reservation level.
  • As that Act contains quotas allotted to the SC, ST, BC, and MBC/DNC categories, any change would require an amendment to that law, as well as the President’s assent.
  • This may create some complications to the existing internal quotas given to the Backward Class (Muslims), who have 2.5% reservation, and the Arundhatiyars, who have a 3% sub-quota among the Scheduled Castes. Both these categories were created by stand-alone laws that only got the Governor’s assent.
  • The High Court had mentioned that these two quotas were backed by census data and valid recommendations, but it did not consider the question whether their introduction without an amendment to the 1994 Act or the President’s assent was valid.

Way Forward

Reservation is no doubt is still relevant in India, as far as it is a method of appropriate positive discrimination for the benefit of the downtrodden and economically backward sections of the society but when it tends to harm the society and ensures privileges for some at the cost of others for narrow political ends, then it implies radical changes are required in the reservation to fulfill its intended goal of inclusion, equality, and justice.

Source: The Hindu


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