Abstract
The system of reservation in India consists of a series of measures, such as reserving access to seats in the various legislatures, to government jobs, and to enrolment in higher educational institutions. The reservation nourishes the historically disadvantaged castes and tribes, listed as Scheduled Castes and Scheduled tribes (SCs and STs) by the Government of India , also those designated as Non-Creamy layer Other Backwards Classes (OBCs) and also the economically backward general. It is intended to realise the promise of equality enshrined in the Constitution. Firstly in this article the researcher will discuss about the Introduction and reason behind the reservation, after that the historical background of reservation and role played by committees and commissions in reservation will be dealing by researcher. In addition to it, he will throw some light on the constitutional provisions provided for reservation. The researcher also intend to deal with few questions on the reservation & in the last by concluding it he will discuss some preventive measures to be taken for the effective reservation policies to be implemented in our country for the development of our nation.
* Reservation, Non-Creamy layer, Reserving access
- Introduction
One of the most important socio legal problems of our country which divided our nation into two parts is “Reservation” for “other backward classes” inter alia on the basis of caste. 27% of the reservation for the “other backward classes” in educational institutions has been provided by Central Government in 2007.Central Government have justified the act as a policy to achieve the goals under Directive Principles of state policy and the objectives are defined under article 38 of the Indian Constitution. Reservation was seemed to be a temporary issue and now seems to be last longer with the period.
Reservation in our country is not new, it started way before when our constitution was made. This reservation got its origin when our society started dividing people according to their occupation like teachers and priests were treated as Brahmins, people who were active in wars were treated as Kshatriya and people who were running their own business were treated as Vaish, etc. but sooner or later People who were living in the elite class of the society started using it as a weapon to divide the society to get their own work done or to make the profit out of it by showing their powers. And it’s still working in that particular way.
Reservation is something that we face in our day to day life. When our constitution was made, then there were articles which were included to uplift the ST, SC and OBC, where these castes were given some extra privilege so that These minority don’t feel discriminated in education, job, etc., where everyone is having the equal right to take stand for themselves and have enough wealth to have their basic needs fulfilled. But now it’s not working in that way, everyone is using their caste as a weapon to have more and more comfort in their life.
There are some important provisions provided by our constitution to the central govt to make such special law for “other backward classes” of our society. Firstly the article 15(5) of the Indian Constitution where clause (5) was initially not added into it and was introduced by the 93rd Amendment Act, 2005.This action of the Central Government was opposed by most of the sections of society and majorly the section which does not belongs to “other backward classes”. Due to this, many writ petitions were filed in various High courts as well as Supreme Court for challenging the above constitution amendment (93rd).
There are various schemes like Atal Pension Yojana, Kasturba Gandhi Balika Vidyalaya, Mahatma Gandhi National Rural Employment Guarantee Act, National Literacy Mission Program, Jan-Dhan Yojana, Pradhan Mantri KaushalVikas Yojana, etc., all these schemes are for facilitating ST, SC and OBC class. But on the ground level it’s not working in that way. People for whom these reservations were implemented in constitution years ago use to live below the poverty line but now they are having a high living standard, their children are now studying in a very high class schools, colleges and even in abroad, they are now enjoying all the facilities that were once out of their reach, but when it comes to pay tax they use reservations, quotas or use exemptions that are provided to them by the constitution of India or Indian government because there cast comes under ST, SC or OBC.
In India, apart from religious and linguistic minority educational institutions, some amount or percentage of seats are reserved in various sectors like public, central and state civil services, central and state government departments and also in private educational institutions and public educational institutions. For SC and ST the policy of reservation has extended to Parliament of India for representation.
- Reason behind the Concept of Reservation
The fundamental theory for the provision of reservation by the state is the under-representation of the identifiable groups as a legacy of the Indian caste system. After we got independence, the Constitution of our country listed some erstwhile groups as Scheduled Castes (SC) and Scheduled Tribes (ST).
The Constitution makers believed that, due to the caste system, The people belongs to SCs and the STs were historically oppressed and denied respect and equal opportunity in Indian society and were thus under-represented in nation-building activities.
The Constitution of India reserved the vacancies up to 15% for government aided educational institutes and for jobs in the government/public sector, and 7.5% reserved quota for the SC and ST candidates for a period of five years, and after this time period the situation was to be evaluated.
If we talk about the most powerful country in the world i.e. United States of America, over there also this caste based reservation was there to empower the Jews community, but in 1968 this reservation was eliminated as the community economically and socially proposed. This happened only because of the society and people living in that country. This can happen in India as well but only when some productive step must be taken by our society. As our country India is a democratic country and having the biggest democracy in the world means whatever the change society wants can implement.
Reasoning based on Legal Framework
While drafting the Indian Constitution, constitution makers believe that the SCs and STs were dominated in the Indian Society and no respect and equal opportunity was given to them due to caste based system and hence this was the main cause of their depreciation in the nation building exercises. To elevate such group of people in the society article 15 & 16 were introduced into the Indian Constitution. The main reason for introducing such provisions in article 15 and article 16 of the Indian Constitution is to allow the backward communities to represent themselves in Indian Politics and society because These communities constituted a huge chunk of the society and the exclusion of them from the legislature and the law making of this country would not have made enough sense.
Reasoning based on Society and Culture
In Indian Society the social sturucture is totally based on caste system and being a root of Indian society it could be detect way thousand years back. The wide super structure of Hindu society is based on varna system then they conquered the indigenous Dasa peoples, the Aryan people already had a social structure containing three hierarchical social groups: the Brahmins (priests), Kshatriyas (warriors and aristocrats), and Vaisyas (merchants and others). At some point after the conquest, a fourth varna, the Shudras (peasants, laborers, and servants) emerged. Those who were not present in the classification of groups were later known to be Dalits (Untouchable) who were completely excluded from the varna system and subsequently excluded from Indian Village life.
We have observed this thing from time immemorial that caste system is a general character of Hindu religion and therefore, approved by its structure. But, over the years, it has been absorbed into the other religions like Islam, Buddhism, Jainism and other ostensibly anti-caste religions.
Hence from the extreme source of its origin, the Indian society has been discriminating certain sections of people, who are of ‘low-born’ as they considered. This generated an applicable point of reservation in the Indian Society and culture to save these persecuted communities from further oppression and to promote their development and education. At least, this is what is the reason with which reservation had come up in India.
III. Historical Background of Reservation in India
“Reservation” is mainly defined or known as a policy or program of giving some certain preferences to a particular section or group of the society which were not very much representative in the comparison of other sections and groups. We all must aware about that the concept of reservation did not take a birth after the creation of our Indian constitution but it was in existence from colonial times. The system of caste and communities were prevailing well before the constitution came into picture.
Way back before Independence there were some presidency areas and princely states in the south of Vindhyas where the reservations for backward castes were already introduced. In 1902, the Maharaja of Kohlapur in Maharashtra provided the reservation for backward classes just to vanish poverty amongst them and provided their share in the administration of Maharashtra State. As per the communiqué of 1902, 50% reservation for services was provided to the different communities in the state & this was the first order from the side of government in order to provide the reservation as welfare of miserable classes in India.
In 1942, Dr. Bhim Rao Ambedkar started all India depressed classes federation for the welfare and development of schedule castes and desires the reservations for them in government as well as other sectors. Later on in the year 1947, India got Independence and Dr. Bhim Rao Ambedkar was appointed as a chairman of the drafting committee of Indian Constitution. The article 15 of the Indian Constitution strictly prohibits discrimination on the grounds of religion, race, caste, sex, and place of birth. To provide equal opportunity to all the citizens of the country the constitution of India contains some special clauses for the advancement of Schedule castes and Schedule tribes or for any socially and educationally backward classes of citizens.
It is notable that the article 15(4) of the Indian Constitution provides a reservation constitutionality in the field of education and did not form part or the constitution as it originally stood up in 1950, whilst in the article 16(4) of the Indian Constitution, there was provision for reservation of appointments or posts for the backward class citizens. So, it was subject matter of debate amongst the founding fathers of constitution for being this article equivalent with article 15(4) of the Indian Constitution.
- Types of Reservation
- Caste Based: Caste is decided on the basis of birth and can never be changed. A person can change his religion, and his economic status can fluctuate but the caste is permanent.
- Gender Based: The Women’s reservation Bill was passed by the Rajya Sabha on 9th March 2010 by a majority vote of 186 members in favour and 1 against.
- Management Quota: It is a quota based on economic status irrespective of caste, race and religion; anybody who has money can buy his/her seat.
- Religion Based: Totally based on one’s religion, govt says that this sub quota is based on the backwardness of the religious communities and not on the religious themselves.
- State of Domicile: Most of the preferences under state government are reserved to those who are domiciles under that government.
- Other criteria: Other criteria includes sons, daughters, grandsons, granddaughters of freedom fighters, Physically handicapped, Sports Personalities, Non Resident Indians (NRIs), Senior citizens, PH in public bus transport.
- Reservation in Educational Sector
The primary objective of our Government is to enhance the social and educational status of minority (SC/ST) population so that they can live their life in a better way. In this context there are some constitutional provisions that have been done for the nourishment of the society, education and economy.
The provision that guarantees “Equality before the Law” is mentioned below:-
Article 15(4) – Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Under this provision, the State has some reserved seats for students in reputed colleges and universities i.e. famous for vocational or professional courses that are under in the central and state governments. According to this provision government are supposed to provide ample amount of financial schemes which favours SC/ST students
- Role of Committees and Commission on Reservation
- A. Hunter Commission, 1882-23: It was created and headed by Sir William Hunter. A very famous and renowned Indian activist Mahatma Jotiarao Phule who was also a social reformer put a demand in front of the commission for free and compulsory education for all.
- Kaka Kalekar Commission, 1953: By a presidential order Kalelkar Commission was established on 29 January 1953 under the chairmanship of Kaka Kalelkar. It is also known as First Backward Classes Commission 1955 or the Kaka Kalelkar Commission. The main purpose of the commission was to examine the situation of socially and educationally backward class. In the initial the report was accepted by central government as the report was published in the concern of minority (SC/ST) population. And later it was rejected by the central government on the ground of that it had not applied any objective tests for identifying the Backward Class.
- Mandal Commission, 1979: The Mandal Commission or the Socially and Educationally Backward Classes Commission (SEBC) established with a mandate to examine the situation of minority (SC/ST) population who was socially and educationally backward and it was headed by B.P. Mandal. In 1980 OBCs (“Other Backward Class”) was granted reservation of 27% making the total number of reservation for SC, ST and OBCs to 49% as the 52% of the Indian population was comprised on the basis of their caste, economic and social indicators.
- Sachar Committee, 2003: The Sachar Committee was headed by Rajinder Sachar the former Chief Justice of Delhi High Court. The other members of the committee were Sayyid Hamid, M.A. Basith, Akhtar Majeed, Abu Saleh Shariff, T.K. Oommen and Rakesh Basant. The Prime Minister Dr. Manmohan Singh also appointed Dr. Syed Mahmoodto serve as Officer on Special Duty to the Committee. The committee submitted its report in the year 2006 on latest social, economic, and educational conditions of the Muslim Community of India.
VII. Constitutional Aspects of the Reservation
According to the petitioners Reservation policy which was mainly used as a means of social engineering had now become a measure of reparation. They also inter alia alleged that the 93rd Amendment Act, 2005 of Indian Constitution was somewhere violating the “Basic Structure” of the Constitution and somewhere trim the right of equality which is provided under article 14 of the Constitution and guaranteed under article 15 of the Constitution. Further in the Central Educational Institutions Act (Reservation in Admission Act), 2006 (enactment act 5 of 2007) the 93rd Constitution amendment was further questioned by identification of OBC on the basis of caste. But the legislation was challenged on a ground of being a “part of the vote catching mechanism” and hence considered to be unreasonable.
In the year 2008, Ashok Kumar Thakur v. Union of India & Ors[1], it was held by the constitutional bench of the Hon’ble supreme court that the 93rd amendment act, 2005 of the Indian Constitution and the enactment act 5 of 2007 is constitutionally valid, but still some new writ petitions were being filed in various high courts across the country and they all have been relying with the Judgement given by Hon’ble Supreme Court of India in above mentioned case.
VIII. Caste: Backdoor entry of Casteism in the Indian Society……………
The Evolution of reservation has been discovered from some of the most prominent cases of Indian Legal System like State of Madras v. Srimathi Champakam Dorairajan[2] and Venkatraman v. State of Madras[3]. The apex court of India i.e. Supreme Court of India held that any executive order or legislation order authorized to reservations will be unconstitutional if it is on the basis of caste. After which the parliament of India interceded on the basis of above said decisions and used his constituent power and inserted clause (4) in the article 15 through which the article 15 gets amended. Clause (4) of article 15 states that “Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” The said amendment was brought by the same constituent assembly which drafted the Indian Constitution. It is one of the most fruitful point to note. Then with the passage of time another prominent decision was made by the court with respect to the ceiling of reservation in M.R. Balaji v. State of Mysore [4]wherein it was held by the Supreme Court of India that under no circumstances can the reservation exceed 50%. Since article 15(4) does not define the term ‘backward classes’, there was a grave concern in identifying the socially and educationally backward classes.
In M.R Balaji v. State of Mysore[5], It was held that ‘caste’ could be the relevant factor in determining the backward classes but it would not be considered as the sole or dominant criteria. The reservation considered in that particular case was entirely on the basis of caste regardless of other relevant factors hence the order passed in it was declared bad. In Janki Prasad Parimoo v. State of J & K[6], it was held that we cannot determine the backwardness purely on the basis of poverty as the major portion of India’s population is backward. Also in Chitralekhav. State of Mysore[7], It was held that any family whose income was less than Rs. 1200 per month and indulged in occupations like crafts, agriculture etc. would be treated as backward and it was somehow declared to be valid ground as the criteria of caste was totally ignored for the purpose. It was also held that determination of backward classes on the basis income, occupation is a right approach to follow and it is not against the article 15(4).
With the passage of time, the judicial system went to some changes and the more importance was given to “caste” to assess backwardness. In P. Ranjendran v. State of Madras [8]it was held that, yes “caste” cannot be the independent criteria but this fact should also not be unremembered that caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such caste. In S.V. Balaram v. State of Andhra Pradesh [9]it was proved that the list of backward class which was entirely based on caste were actually socially and educationally backward and hence it was held to be valid. But if you see in State of Andhra Pradesh v. P.Sagar[10], a list of backward class based solely on caste without any material showing that the entire caste is backward, was quashed as violative of Article 15(4). In K.S. Jayasree v. State of Kerala[11], Family whose income is more than 10000 but belongs to backward class were not allowed to avail the benefit of reservation as it was earlier held that caste cannot be treated as the pure or dominant factor and the poverty also cannot be taken into picture for fulfilling the purpose. It was held that both poverty and caste are the relevant factors for the identification of backwardness. Neither caste nor poverty cannot be purely considered as a factor of identifying the backwardness.
In Jagdish Negi v. State of Uttar Pradesh[12], It was lucid that no class of citizens can be perpetually treated as socially and educationally backward and the State is entitled to review the situation from time to time. In Indra Sawhney v. Union of India[13], it was decided that in each and every year the policy based on reservation must be utilized and there cannot be any perpetuate policy. In addition to it, it was also held that the percentage of reservation should not be in the proportion to the percentage population of the backward classes to the total population and it is the discretionary power of the state to keep reservation by considering all the reasonable claims and relevant factors. In Ashok Kumar Thakur v. Union of India[14], Justice Balakrishnan, CJ, did not deliver any new practice for the identification of backward classes but the principle which was used in earlier judgments was followed by him.
For the determination of backward classes various commissions had done the public hearing. Before finalizing the list National Commissions held 236 public hearing. Detailed data of the social, educational and the economic criteria has been taken into consideration by the National Commission and in respect to it; Commission has recommended 297 requests and rejected 288 requests for the inclusion in the final list. To know whether there is any improvement or deterioration during the last 20 years in the condition of the caste or community mentioned in the final list. The National Commission has kept a thorough look on it. In respect to that, Justice Balakrishnan had mentioned in his judgment that identification of OBC’s was not done solely based on caste. Thus Act 5 of 2007 is not invalid for such purpose. As an opposing opinion various important points were raised by Justice Bhandari. In his point he stated that the main purpose of our constitution is to make our society caste free and determining that caste system of India is the main backwardness, and we think that caste system will help our India to have a prosperous lifestyle. Justice Bhandari also stated that economy should be the only criteria to determine the backwardness and there should be time bound for every proposed affirmative action.
To oppose the statement of the Hon’ble Justice Dalveer Bhandari the author respectfully stated his point. A major criterion for determining the backwardness has been stated by the Justice KG Balakrishnan and we all agree to that. Since the time immemorial caste system has been a prevalent point for the debate. Every individual is of some caste and every caste resembles an occupation that the majority of that community does. As an example the case by learned Counsel Ravi Varma Kumar, in which he stated that 6.5 Lac of the Indian population is of the barber community, and the main job of this community has is to cut hair and nothing and no other community has chosen this kind of a job as occupation. But to have a better and stable lifestyle they are now moving towards other occupation like lawyer, engineer, doctor, etc., but the number of this kind of job person is very few. This caste-occupation still exists in our county India, and thus, because of their community occupation we can’t call the whole community as backward.
Thus on the caste we cannot totally ignore the criterion. As far as concerned to those people who belong to these kind of caste but are way off because of their education and good economic condition, thus they belong to the creamy layer, and thus people falling under this kind of creamy layer should be ignored for the reservation, and in respect to this no such people falling under the creamy layer will get the benefit of reservation. But to make our country India casteless this can’t be implemented immediately in future. But till that time for the advancement of the backward caste affirmative action needs to be adopted. And once it is felt that these castes are now sufficiently advanced, the backwardness criteria can be disposed off. However, we agree with Justice Bhandari’s statement that the time limit of the caste-based reservation needs to be propounded.
The authors most respectfully differ from the said view of the Hon’ble Court. The Court seems to have assumed that there is no creamy layer from amongst the persons belonging to SCs and STs. The whole purpose of reservation is to see to it that backward classes advance forward. For over 58 years, reservations have been given to SCs and STs and it would be expected that certain sections of SCs and STs would have advanced or will advance forward (socially and economically).
“Caste has killed public spirit, caste has destroyed the sense of public charity, caste has made public opinion impossible, virtue has become caste-ridden and morality has become caste-bound”——- Dr. Bhim Rao Ambedkar
- Conclusion
We live in an incredible country called India, who got independent 72 years ago. And now we are in a digital era where India is on the way to be the most powerful country in all ways. We are developing but we are still not growing on that speed due to some reasons and the biggest reason of all is the Reservation in every field. It is not working in that way; everyone is using their caste as a weapon to have more and more comfort in their life.
Reservation means facilitating those once who can’t help them in regards to their basic needs like food, shelter, cloth, education, etc., but now the whole concept of reservation has been changed. Even in the train reservation the reservation quota is misused. People for whom these reservations were implemented in constitution years ago used to live below the poverty line but now they are having a high living standard and now there is no need of it.
Dr. Bhimrao Ramji Ambedkar said, “You cannot build anything On the Foundation of Caste. You cannot build up a Nation. You cannot build up a Morality”. But his quote was never implemented in real life.
Whatever is mentioned in article 15 is true and correct, but somewhere what we think few amendments can be done in this, this system is old now and we need a new system of reservation in India, and the system of reservation should include the Income Based Reservation and exclude the creamy layer. If a family income is less a stipulated amount, say 6 Lakh/Annum.
If we implement this kind of a system, then this will be the biggest change in our history and in the field of education. If creamy layer will be excluded from the ambit of Reservation, then this will be the first big step towards social welfare. We have experienced many students who are very intellectual and scored good marks but don’t get seats in government colleges because of the seat reservation. Because of this seat reservation system based on the caste in education, meritorious students don’t get chance to showcase their talent or knowledge or enhance their knowledge by getting admission in government colleges. Every year 85% of the kids are admitted to schools, while they reach the 5th grade only 60% of it remains and till high school only 52% remains. Only 7% of those kids admitted to that school finally pass and take the 10th passing certificate. And only 3.6% of the total kids do graduation. This is not because of the kids can’t perform. This is because of the quality of the teachers, no teacher, infrastructure, etc. reservation is used during the selection of the teachers too, that’s why teachers who can’t pronounce apple in the proper way gets the government job. And teachers who are really talented didn’t get it because of the seat reservation system they all join private schools or colleges who pay them a good salary.
Without having the access to quality of education, minority will remain minority.
The caste based reservation is there because majority of us don’t want a caste free reservation in India. Reservation has always been a political issue to grab more and more votes. This break and rule mentality has been in India form the British rule itself, and till know after 71 years of the independence it’s still the same nothing has changed, only the words changed not the meaning. First British came and implemented break and rule and now it is done by our great politicians. If we talk about the most powerful country in the world then United States comes, over there also this caste based reservation was there to empower the Jews community, but in 1968 this reservation was eliminated as the community economically and socially proposed. This can happen in India also but only when the mentality of our society will change.
We agree that in India without reservation nothing will go smooth but what we suggest is that specially in the field of education reservation should only be till 12th grade, after that, that student is capable enough to face the competition in the market.
Now if we consider the theory of John Rawles of justice then he clearly said that “Starting line should be / must be the same for all the persons”. Thus, if we are providing reservation in the education system till 12th grade means that we are providing that same to all then there is no need of giving reservation in jobs or in anywhere else.
Let the new generation compete among themselves and learn, and let the best come out of the best. Now, this is the time when we can do something about this reservation and we are the only one who can make the biggest change in the history of mankind.
Change will only happen when you will change.
[1] AIR (2008) 6 SCC 1
[2] 1951 AIR 226, 1951 SCR 525
[3] 1966 AIR 1089, 1966 SCR (2) 229
[4] 1962 AIR 649, 1962 SCR Supl. (1) 439
[5] ibid
[6] 1973 AIR 930, 1973 SCR (3) 236
[7] 1964 AIR 1823, 1964 SCR (6) 368
[8] 1968 AIR 1012, 1968 SCR (2) 786
[9] 1972 AIR 1375, 1972 SCR (3) 247
[10] 1968 AIR 1379, 1968 SCR (3) 565
[11] 1976 AIR 2381, 1977 SCR (1) 194
[12] AIR 1997, SC, 3505
[13] AIR 1993, SC, 477 : 1992 Supp (3) SCC 217
[14] (2008) 6 SCC 1
