Expansion of the reservation system in India and the constitutional framework

Expansion of the reservation system in India and the constitutional framework

8 Apr, 2023

Expansion of the reservation system in India and the constitutional framework

Author – MANVI PRIYA. Student at Bharati Vidyapeeth, New Law College, Pune.

Abstract.

The Constitution of India aims to empower each citizen of India. The system of reservation is put into practice so that a fair due should be paid to those sections of society that faced gross unjust. No matter how effective a tool you have if it is not used properly there is always a scope of flaw. Everything that is there in the constitution is for a well-defined purpose and aim to achieve parity. Through reservation, social justice is meant to achieve, to a large extent the purpose is served as now nobody is concerned about the strata you belong. In day-to-day interaction it is invaluable. Any system that aims to be efficient must pass the test of time otherwise it will be outdated. In this article I shall be analyzing the various facets of reservation and how an effective revision can make it more reasonable.

Keywords– Reservation, Social justice, Case laws, Equality, Just and fair.

Expansion of the Reservation System In India and the Constitutional Framework.

Not every DNA carries wealth and intelligence, not everyone with a surname needs upliftment. It’s time to stop being greedy and help the needy, Else cut that lie of mentioning right to equality.

The bedrock of reservation policy in India can be traced from ancient India, where the society was divided predominantly into four varnas according to their occupation, namely – Brahmins (who would perform the teachings and spiritual activities), kshatriyas (who would involve in kinship and war), Vyasa (deal with business chores) and Shudras (who shall do the leftover work). The meaning of word ‘reservation’ is to set aside a certain number of seats/facilities for a specific class or classes. The purpose behind reservation was to bring the downtrodden section of society into mainstream, a kind of affirmative action or positive discrimination. The injustice that socially backward people face owing to something which was beyond their hold was to be compensated through the reservation by reserving seats for them in various educational institutions and public employment sector.

Expansion of the Reservation System.

The expansion of the Reservation System has gone unchecked over the decades. Lack of proper guard over this sensitive issue has made it more contentious, and that is being used by political leaders for political gain. The reservation is so deeply rooted that it cannot be eradicated at once nor has it grown to the present extent in a few years as it has been glorified from time to time. Hence a proper framework needs to be adopted to deal with it, which strikes the main dilemma. The idea behind ‘right to equality’ must be interpreted in neutral sense so that it achieves the very purpose of its inclusion in the constitution, equality can be maintained if keep the scope of modification on as per the changing nature of the society. Law and society run parallel to each other, they keep the relations of check and balances.

Article 15 and 16 of the constitution of India talks about the reservation policy in detail,

Article 15 – No discrimination on the grounds of religion, race, caste, etc.                                          Clause (1) of Article 15 provides; ‘’The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’’

Clause (2);’’No citizen shall on the grounds only of religion, race, castes or place of birth or any of them be subjected to any disability, liability, restriction or condition regarding access to the places of public resort, maintained wholly or partially out of state funds or dedicated to the use of public’’

Clause (3);’’ Nothing in this article shall prevent the state from making any special provision for women and children’’

Women and children are considered as weaker section of the society who need the support to survive, hence they must be given the constitutional support. Also, women and children are more susceptible to the exploitation.

Clause (4); ‘’ Special provision for advancement of backward classes’’

Which was inserted by the constitution (1st amendment) Act, 1951, owing to the judgement in State of Madras v. Champakam Durairajan[1] , in this case, state government of madras, reserved seats in medical and engineering colleges in certain proportion because of religion, race and caste, SC held it to be void as it made classification based on religion and caste.

Clause (5); is not violative of Articles 32 and 226 as it doesn’t take away the power of the judicial review and not violative of the basic structure of the constitution.

Clause (6); was inserted to Article 15 through the 103rd amendment act, 2019, which gives 10 percent of reservation to economically weaker section (EWS) of the society in various educational and public institution.

It is said any provision as far as it doesn’t harm the basic structure of the constitution is valid, but same should not be the case with reservation policy as it might not harm the basic structure but holds the potential to hamper the basic functionality of the country.

In Indra Sawhney[2] case it was held that the reservation policy should not exceed the 50% cap of the total reservation.

The reservation that is provided in educational institutions under Article 15, is provided in the matters of public employment under Article 16 of the constitution.   Article 16; Equal opportunity in matters of government employment.   Clause (1); religion, race, caste, sex, place of birth or any of them should not be the basis of classification in matters of public employment. Clause (2) embraces the same general idea as Clause (1).

Clause (3); Nothing in this Article shall prevent the parliament making special laws for the class or classes of employment or appointment in any public offices.

Clause (4); Reservation of any post in the favor of backward citizens in any of the public offices.

Clause (5);’’ Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination’’.

Clause (6) was inserted into Article 16 through 103rd constitutional (amendment) act, 2019 with the purpose of providing 10 % reservation to economically weaker section of the society in the matter of public employment.

EWS is still in debate.

Despite three years of EWS reservation quota act enactment, there’s still a debate over its constitutional validity. It has been contended that the purpose of reservation was to uplift the socially backward people and not economically.  Recently, the Supreme Court upheld the constitutional validity of the 103rd constitutional amendment act, 2019 providing 10 percent reservation to economically weaker section (EWS) in admission and public employment with 3:2 split precedent. Reading out the verdict Justice Dinesh Maheshwari said, the 103rd amendment act of 2019 is valid as it doesn’t rupture the basic structure of the constitution.   Justice Trivedi said there is requirement to reanalyze the reservation policy and it should have a time span.  Justice Pardiwala, holding the reservation valid, observed it cannot go indefinitely.

However, Justice Bhatt disagreed with the majority and contended, leaving out the poor from SC/ST/OBC category to avail the reservation under EWS category is discriminatory. CJI UU Lalit expressed his assent to Justice Bhatt judgement.

Opinion; A medicine cannot be prescribed to a person for a prolonged period, if recovery is to be achieved medicine must be either changed if not working effectively on overall wellbeing of the patient or must be stopped if desired result is attained. The application of the same medicine with changing physical requirement will undoubtedly cause more harm than gain to his health. The same analogy could be framed on reservation, it was introduced to achieve a specific target but keeping it idle without checkup periodically will only make it ineffective and dormant. Societal composition is not the same as it was at the time reservation was introduced much has changed but same policy without modification is in action that is the cause of turmoil. The meaning of reservation has been interpreted over the course of time, but it requires wise attention that how it be used in a much desirable way, so it serves the purpose of its very existence. Doing gross unjust with a section of society just to favor other will shake the concept of equality. The biggest mistake to consider on regard of reservation is inefficacy of the government on any given day to revise and revisit the policy of reservation that was frame for specific purpose and specific timeline, the purpose was to achieve the equity and equality for the downtrodden section of the society and an attempt to bring them in the mainstream, over the years it can apparently been witnessed how this contentious issue used for political gain and motivation. It became the source of vote bank; political leaders glorify the reservation by inciting the people to vote only to the candidate who belong to a specific caste and wash away their rationality to choose the candidate solely based on candidate’s merit and leadership skill. Not having a skilled leader to govern the state or country is a direct and absolute threat for progress. Many a time it is noticed how a specific caste has predominance over a specific area such is the influence of caste system. In present time society has achieved a growth in the matter of castiesm acceptance of people for lower has increased.

Case Study: In Bihar politics caste is an inseparable phenomenon and it is used as an important tool to choose among the candidates. No matter how many criminal cases pending against him, no matter how qualified he is for the seat, no matter how much experience he has, all that matters is to which caste he belongs, isn’t unfair or unjust but a matter of harsh fact. Lalu Prasad Yadav, who became the Chief Minister of Bihar in 1990 used the caste system to vote out to power. People’s mentality has been diverted to the caste-based politics. It is partially if not entirely a major reason behind the steady growth of Bihar. The glorification of caste system in many such states as Bihar has made it a more rigid problem to solve. Prevalence of this forward / backward gimmick has hindered the growth of the mind of the people and so the society. Unless people don’t get over such mindset reservations will continue to remain an unresolved problem.  Just in 2020 state election leaders invoke the same method for vote gain, if a specific area has majority of population belonging to a particular caste, then, there the candidate of the very same caste will be made to stand so that attack on the people’s conscience becomes an easy task. The simple idea behind this case analysis is to point out the fact is that if we wish to limit the reservation, we must understand the reason of its existence that is apparently the caste system so unless the deep-rooted dilemma of casteism is not overcome probably no change is foreseeable. In contrary we see how influential the caste system is, how it changes the mind of the people from rational to irrational being. If some are allowed to be used to such an extent, then the expansion of the reservation system is inevitable.

We see there is always a sense of agitation in the mind of the group of people who are not able to gain the benefit of reservation and cease to be at the place where people from equal or low merit be , this make them feel cutoff from the society and such indifferent treatment takes the society back at the stage from where it wish to evolve with the introduction of the reservation. Still there is dominance of inequality which holds the potential to rupture the overall growth of society. Reservation becomes ineffective if it is made to be applicable beyond a desired timeline, because it loses the very essence of its existence and becomes a tool of exploitation for the group who is aloof of its gain. If we plant a tree and forget to treat it as per the changing physical environment it will not grow in a healthy manner, reservation has remained unchecked over decades as result of which it loses its charm.

Again, suppose there is land half of which is barren, and half is fertile, you start to pour the barren land with water, and left the fertile land owing to its fertility and not pay attention to it now, the result is foreseeable, that barren land will get equipped with too much water in it and that fertile land will get barren and unfertile. Moral of the story,

Pay attention to the specific portion of underdeveloped parts of society but just to it will hamper the growth of other developed sections of the society. Here, striking the balance is most desirable that how you promote the socially backward class of people without making much compromise with forward section. The idea behind this should be to bring backwards forward not to take forwards backward. No segment of society should be ignored, this should be the motive of reservation. 

Constitutional Provision.

The farmers of the constitution of India wanted to make a level playing field for each citizen of the country, hence they establish the principle of ‘’Right to Equality’’ under Part III of the constitution that is Fundamental Rights. Fundamental Rights is a self-explanatory term, it is the right that is given to an individual because he is a human, it is not a favor done for them, but it is those rights that are inherent. Fundamental rights are enforceable means, if any individual fundamental right is violated, he could directly move to High Court or Supreme Court under Article 226 and 32 respectively of the constitution. Article 32 was referred to as the ‘’Heart and Soul’ of the constitution by the father of the constitution Dr. B.R.Ambedkar.   Right without Remedy has got little or no value.

Now, let us look at the various constitutional provisions that embrace the concept of equality;

  1. Right to Equality (Article 14 – 18)
  2. Article 14 – Equality before law / Equal protection of law- Equality before law enunciates the idea of ‘supremacy of law’ I.e., no man is above law and disregard any favor done to a specific person. It’s a negative concept and this idea is borrowed from Britain. 

Equal protection of law is a positive concept and idea is borrowed from US. The rule is that ‘Like should be treated alike and not that unlike should be treated alike’.

  • Article 15 – No discrimination on the grounds only based on religion, race, caste, sex or place of birth.
  • Article 16 – Equality of opportunities in the matter of public employment.
  • Article 17 – Abolition of Untouchability.

The very indifferent treatment of the socially backward class and consider them as untouchables is the reason behind the inclusion of this specific article. Earlier in the history it was believed that they were so impure that even if they cross the way of Brahmins the entire way is to be cleaned up. Gandhi ji called them as Harijans one who is close to Hari or God. Now, to a far extent the same is not the case; people from such a community could be seen in higher posts or positions. People’s mentality has also seen a reverse in this regard.

  • Article 18 – Abolition of Titles.
  • No title, not being a military or academic distinction, shall be conferred by the state.
  • No citizen of India shall accept any title from any foreign state.
  • No person who is not a citizen of India shall, while he holds any office of profit or trust under the state, accept without the consent of the President any title from any foreign state.
  • No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State Right to Freedom.

All such Articles govern the principle of equality and equal treatment. It is a safeguard that has been guaranteed to every citizen of the country against the uneven treatment by the state.

Let’s see the amendment that took place over the years in regard of reservation;

  • First Amendment Act, 1951- A new clause (4) was added to Article 15 empowering the state to make special provisions for advancement of the socially and educationally backward classes of citizens.
  • Seventy-seven Amendment Act, 1995 – Clause 4(A) was added to Article 16 through this amendment. This was done in response to the Supreme Court judgement in the mandal commission case in which the court held reservation in promotion could not be made. Clause 4(A) empowers the state to make any provision for the reservation in promotions in government jobs in favor of SCs/STs if the state is of the opinion that they are not represented adequately in public services.
  • Eighty- second Amendment Act, 2000 – This amendment was made to restore the relaxation in qualifying marks and standard of evaluation in both job reservation and promotions to both SCs/STs which was set aside by a Supreme Court judgement in 1996.
  • Eighty- fifth Amendment Act, 2001- This amendment was made to amend the clause (4-A) of Article 16 and substitute the words ‘’in matter of promotion to any class’’ with ‘’in matters of promotion, with consequential seniority, to any class’’. Thus, promotion would be given to these classes with a retrospective date I.e., 17th June 1995.
  • One Hundred and Second Amendment Act, 2018 – Article 338-B was inserted which makes the provision for the establishment of the National Commission for Backward classes. The president shall appoint the Chairman, Vice-chairman and members of the commission. The duties and power of the commission have been assigned in the article. The Union and State shall consult to the commission on making of any policy/law affecting the socially and educationally backward classes.
  • One Hundred and Third Amendment Act, 2019 – By inserting clause (6) in Article 15 the state has been enabled to make any special provision in advancement of economically weaker section of the society. A reservation of 10% was granted to them in admission to any educational institutions.

 Clause (6) was added to Article 16 that grants reservation to economically weaker section in matters appointment not exceeding the 10% limit.

This was done in favour of the group of citizens who are meritorious but couldn’t avail themselves of the facility to educate themselves because of their economic status. They are made to face an undue disadvantage; such reservations will help them to change their economic status as education is the key to success. Reservation in matters of employment will also do the same for them.

  • One Hundred and Fourth Amendment Act, 2019 – Through this amendment seats for Schedule Caste and Schedule Tribe were reserved in House of the people and in the Assemblies of the State for a further period of 10 years I.e., up to 2030.

Concept of Creamy layer.

The concept of Creamy layer has evolved from the mandal commission case. Going by the term, let’s try to interpret it, cream is found in the top layer of the milk that is pure and authentic (maybe like cherry on the cake) and rest of the milk with added proportion of water in rest of the layer. With the same analogy, creamy layer is that section of a particular backward class that has developed and come forward. The facility of reservation has helped them to change their position in society and they no longer need it. The idea behind this is that the facility of reservation should be made available to the weakest section of society who need it more urgently than to the group of that class for whom it is luxury. The purpose of reservation is to uplift the downtrodden section of society or to quench the thirst of the thirsty, will the one who is already equipped with water all over around them need water to quench the thirst?

Off course NO.

The framework should not be of ‘’Come first and serve first’’ the forward section of any class will be able to restore the benefit quickly than the backward one, so, with this they will remain aloof of such facilities ever. It is government who should aid the targeted population in an effective way.

Case History of Creamy Layer.

Salient points from the past verdicts which dealt with application of creamy layer concept in reservation.

  1. Indra Sawhney[3] case, a nine-judge bench – In this case Supreme Court pronounce, ‘’The exclusion of creamy layer from the beneficiaries of reservations is a constitutional requirement to be honored by the Central and State Governments’’.

The term ‘Creamy layer’ was first used during 1993 in this case. Some principles have been laid down by the Supreme Court in the 1992 judgement on the creamy layer. These include children of constitutional functionaries including the President, Vice-President and Judges of the Supreme and High Courts. Children from members in administrative services like IAS, IPS etc., are also fall under the creamy layer. All such classes that have waive off their backwardness and come to the mainstream are under the scope of creamy layer.

The plan to set up the Mandal commission was taken by the Morarji Desai government in 1978 as per the mandate of the constitution of India under Article 340 for the purpose of Articles 15 and 16. The commission is popularly known as the Mandal Commission, its chairman being B.P.Mandal.

  • In M.Nagraj v. Union of India[4]– It was held by a constitutional bench, that, Quota benefits should go to the weakest of weak and not snatched away by members of the class who are in the ‘’top creamy layer’’.

The five-judges bench in Nagraj case mainly put up two bones of contention:

First: The court pronounced that state is not bound to make reservation for the SC/ST in the matter of promotions. However, if they wish to make such a provision, the state must collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335.

Second: Also, it reversed its earlier stance in Mandal Case, in which it had excluded the creamy layer concept on SCs/STs (that was applicable on OBC).

  • In Jarnail Singh v. Lachhmi Narain Gupta [5]– The court upheld reservation in promotions for SC/STs in public employment. However, it extended the creamy layer principle to SCs/STs in promotions. This means that SCs/STs belonging to the creamy layer are not eligible for reservation in promotions. The objective of reservations is to ensure that backward classes are able to progress on an equal basis with other citizens. However, those belonging to the creamy layer in the SC/ST category were cornering the coveted jobs in public sector. Those who were truly backward were unable to access the benefits of reservations. The court emphasized that the exclusion of the creamy layer is a facet of Equality. Failing to apply the creamy layer principle would treat equals unequally – the general category candidates would be treated differently than the forward among the SC/ST community. Further, without the creamy layer principle, unequals would be treated equally – the backward SC/STs would be treated same as the forward among the SC/STs.

Thus, keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake. This will not just defeat the purpose of reservation but also will establish a subtle inequality in society.   The concept of creamy layer is thus very seminal to imply that it would ensure the prevalence of equality in the mechanism of reservation.

Reservation is not a wrong concept but the inability to execute it effectively makes it contentious and hence unjust for a large section of society.

Conclusion.

The issue of reservation has remained a cause of disagreement between the reserved and the non-reserved sections of society. While the unreserved segments keep on opposing the provision, the needy section from the reserved segment are hardly aware about how to get benefitted from the provision.  The reservation policy in India was adopted with a reason to uplift certain castes who were subjugated to atrocities, social and economic backwardness due to the prevalent dominance of caste system.

The reason has lost its essence in the modern era, and the castes that would be benefitted are not being benefitted, and the others are reaping the benefits of the reservation system that is not meant for it. Currently, the reservation system has just became a tool for politicians to gain votes.  The reservation policy is good to the point some deserving candidate is not missing upon the opportunity because of the prevalent reservation system. There is no reason for giving admissions to undeserving students over deserving students. If these classes of people have been denied opportunities in the past, then the scenario is being repeated with the general class in the present. The undeserving should not reap the fruits of labor of the deserving.

I feel if a certain thing is left idle for an indiscriminate period it loses its charm. Same has gone for the case of reservations, it could have been much more effective if it was made for a specific period. Now we talk of growth and development, but will we be able achieve those targets if the working force is inefficient and incapable. As a student I’m surrounded by the students, and there is this thought among reserved category that we goanna get the college or job through reservation, on contrary unreserved category always have this agitation that even if we score better than many of reserved category we have to the consequence of reservation, both ideas rupture the foundation of nation building. Government efficacy is not apt as far as reservation is concerned, they should be vigilant in making sure that the neediest section gets the benefit of reservation. There have been instances where people have made a false caste or ews certificate to avail the facility of reservation, instead of working to achieve their goal this apparently conclude that it is making student lethargic for their work.

At many places there is demand from the government to include a specific community under the reserved category so that they can avail the benefit of reservation. But as a matter of concern if government for vote bank start to entertain such demands won’t it adulterate the entire system? There will be no place in the system for merit-based selection and thus only reservations will prevail. Reservation has evolved from the extreme vulnerable treatment of the backward caste, now if again that extreme is repeated with the forward caste, we will go back to the very point we have begun. Instead of fitting all in the ambit of reservation better approach could be to promote the merit.  

 [1]. AIR 1951 SC 226

[2] AIR 1993 SC 447

[3] AIR 1993 SC 447

[4] (2006) 8 SCC 212 : AIR 2007 SC 71 followed

[5] AIR 2018 SC 4729 p. 4747