The Reservation system in India under the Indian Constitution
Author:- Shefali Goel and Bharat Kumar
Keywords:- Reservation, India, Constitution, Scheduled Castes, Scheduled Tribes, quota, history, citizen, natural justice
Abstract
Reservation in India is the process of facilitating a person in education, scholarship, jobs, and promotions who has category certificates. It is a form of quota-based affirmative action. Reservation is governed by constitutional laws, statutory laws, and local rules and regulations. Scheduled Castes, Scheduled Tribes, and Other Backward Classes, and in some states Backward Classes among Muslims under a category, are the primary beneficiaries of the reservation policies under the Constitution – with the object of ensuring a level playing field.”. in recent times the latest amendment i.e., 103rd amendment act which has been done by BJP govt. is violating the basic structure and also violating the judgment of the supreme court in several cases.
1.0 Reservation?
The reservation system aims to uplift the lower sections of society which, through the ages, have been exploited and deprived of rights and basic amenities. By providing these minorities with reservations in government jobs and colleges. They are supposed to become a part of mainstream society. As a result, it is expected that people will start accepting them.
1.2. History of the reservation
- 1902: Shahu, the Maharaja of the princely state of Kolhapur, introduces reservation in favor of non-Brahmin and backward classes in education.
- 1921: Mysore initiates reservation for backward castes after a decade-long social justice movement against the repression of non-Brahmin castes.
- 1932: Communal Award by the British government grants separate electorates in India for Muslims, Buddhists, Sikhs, Christians, Anglo-Indians, Europeans, and Depressed Classes (then untouchables). Later, Poona Pact between M K Gandhi and B R Ambedkar reserves seats for depressed castes within Hindu electorates
- 1942: Viceroy’s Executive Council recommends 8.5 percent reservation for Scheduled Castes in civil services. B R Ambedkar was a member of the council
- 1950: Indian Constitution commits to reservations for Scheduled Castes and Tribes. A Government Order excluded converts (except four Sikh Dalit castes) but by the 1990s, Sikh and Buddhist castes were included, but Christian and Muslim Dalits remain excluded.
- 1951: First Amendment in the Constitution to legalize caste-based reservation in face of court cases against quota.
- 1990: Mandal Commission report recommending 27 percent reservation to OBCs is implemented by Prime Minister V P Singh
- 1992: Supreme Court orders a 50 percent cap on the caste-based reservation. Also strikes down the Narasimha Rao government’s move to reserve 10% of government jobs for the poor among Upper Castes. “Economic condition not a criterion for reservation.”
- 2019: Parliament passes Article 15 amendment bill allowing 10 percent quota for poor in higher education and jobs. Bill challenged in Supreme Court.
1.3. Right to Equality harmed
The policy of the reservation is directly violating Article 14[1] or equality before, also Article 15 and 16[2].
Article 15 of the Indian Constitution states that
Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
(a) Access to shops, public restaurants, hotels and places of public entertainment; or
(b) The use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
[(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.]1. Added by the Constitution (First Amendment) Act, 1951
The policy of reservation is also affecting the basic structure of the constitution by creating discrimination based on caste which is unconstitutional. It was also held that caste is not the sole criterion for ascertaining whether a particular caste is backward or not. Determinants such as poverty, place of birth, and place of habitation can be the determinants. Giving reservations based on caste is unconstitutional[3].
Aarti Ray Choudhary Vs. Union of India
In the case of Aarti Ray Choudhary Vs. Union of India (1974) 1 SCC 298 it was held that the reservation must not be made in the name of advancement of the backward classes. Because if this is done fundamental rights of other communities would be annihilated[4].
Article 16(1)[5] must also be kept in mind article 16(4)[6] is a kind of provision of Article 16(1). Hence, excessive reservation in favor of backward classes will in effect deny the right under article 16(1) to others and such reservation cannot be unconstitutional[7].
Neither the classification nor affirmative action can obliterate the individual right to equal opportunity- by H.M. Seervai[8].
There is a landmark judgment of the supreme court of India. This led to the first amendment of the constitution of India. It was the first major judgment regarding reservation in the Republic of India. In its ruling, the Supreme court upheld the judgment of the Madras High Court, which in turn back had struck down the govt. The order was passed in 1927 during madras presidency. The govt. had provided caste-based reservations in govt. jobs and college seats. The Supreme court’s verdict held that providing such reservation was a violation of Article 16(2) of the Indian constitution.[9]
1.4. Discrimination on the basis of caste leads to the deserving students failing to get what they Deserve.
By giving reservations on the basis of caste in educational institutions and also in competitive exams is irrational. Also against the judgment of the supreme court in the case of Balaji vs. The state of Mysore. Discrimination on the basis of caste is morally wrong and also affects the youth to move to the other country for the seats because of caste they have to face lots of discrimination in competitive exams[10].
Times of India on May 21, 2017 states that “Among aspirants from state boards, the ratio is skewed in favor of backward candidates as against the ones from the general quota. However, the qualifying score for backward candidates is 49 while for open-category students it is 81”.
The supreme court laid down that “in the interest of efficient administration and at least half of the numbers of the post should be kept open to attract the best of nations talent. If it is otherwise, an excess of reserved quotas would convert the state service into a collective membership predominantly of backward classes[11].
In the case of Ajit Singh I vs. the state of Punjab– for attracting meritorious and talented people to the public services, a balance has to be struck, while making the provision for the reservation in respect of a section of the society[12].
1.5. Violation of natural justice
The Indian Constitution provides for Justice: Social, Economic, and Political which is part of the concept of Natural Justice. Article 311 of the Constitution of India incorporates many of the features of natural justice without explicitly mentioning it. The Indian concept of Natural Justice is in favor of Equality among individuals. Violation of natural justice is equal to violation of Equality of Article 14 of the Constitution of India. But the system of reservations in jobs and educational institutions for certain sections in India persists and hence violates the concepts of Natural Justice and Equality.
Reservation violates natural justice because it leads to denial and rejection of the deserving and acceptance and recognition of the undeserving. The sections of society do not get reservations even after having the capability, intelligence, and dedication to one’s goal. They fail to achieve their aspirations. While the reserved class even if they possess lesser ability, resolve and ambitions, make the cut quite easily. The result of the violation of this natural justice by the system of reservations is that it promotes inefficiency. Which is disastrous from the point of view of the beneficiaries themselves and also to the nation’s progress.
When inefficient people replace efficient people in govt jobs and educational institutions, the concept of natural justice is further distorted. This is because these inefficient people are incapable of upholding the ideals of natural justice themselves while interacting with the public at large which also violates many of their Fundamental Rights.
By giving the reservation based on caste not based on skills violates natural justice. When the incapable people defeated the capable ones not based on skills but based on caste violates the rule of natural justice also some judgments clearly state that caste sole cannot be the criteria for giving reservation[13].
1.6. Mischief rule of Interpretation.
The main aim of the rule is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would “suppress the mischief, and advance the remedy”. In applying the mischief rule, the court is essentially asking what part of the law did the law not cover, but was meant to be rectified by Parliament in passing the bill[14].
It was observed that judges can apply statutory interpretation to discover it was what the previous law did not cover, which Parliament was seeking to remedy when it passed the law now being reviewed by the court[15].
The hon`ble supreme court applies the rule in a more restricted manner, and generally with greater regard for the integrity of the statutes which they are interpreting. Driedger puts it this way: “To this day, Heydon’s Case is frequently cited. The courts still look for the ‘mischief’ and ‘remedy’, but now use what they find as aids to discover the meaning of what the legislature has said rather than to change it”. Driedger goes on to argue that this modern use of the mischief rule ought to be understood as one of the components of what he characterized as the “modern” method of statutory constructio. Rather than a stand-alone rule serving (as it formerly had), as an alternative to the methods of construction. As proposed by the plain meaning rule and the golden rule.
Here in the case of reservation, the rule of mischief of interpretation can also apply because it harms the basic structure and also violates fundamental rights. And the supreme court has also the power to rectify it.
1.7. Introduced as a Temporary Provision
Reservation in India is the process of facilitating a person in education, scholarship, jobs, and promotions who has category certificates. It is a form of quota-based affirmative action. Reservation is governed by constitutional laws, statutory laws, and local rules and regulations. Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC), and in some states Backward Classes among Muslims under a category called BC(M), are the primary beneficiaries of the reservation policies under the Constitution – with the object of ensuring a level playing field.”
The concept of reservation was introduced as a temporary provision for the upliftment of society’s people. At first, that was made for ten years and then further it was extended to ten years more. It was made for their upliftment but no such upliftment was found on their level. After 20 years there was no freedom fighter left who will fight for the policy of reservation was misused for profit-based politics for themselves. And they started using it as a vote bank. At that time no one will speak in favor or against the reservation policy they get the advantage of getting more votes from SCs and STs and if they don’t support it, they will lose their voting from SCs and STs. So, after that, the reservation policy became the policy of a vote bank for the politicians.
Originally under Article 334 the reservation for these cases was made for ten years from the commencement of the constitution. Since then this duration has been extended from time to time. The word ‘twenty’ was submitted in the constitution.
1.8. Caste-based reservation leads to agitation
The Jaat reservation agitation was a series of violent people protest in February 2016 by the Jaat people of Haryana, which paralyzed the state for 10 days. The protestors sought inclusion of their caste in OBC which makes them eligible for affirmative action benefits. By February 25, the riots were estimated to have a caused loss of Rs. 340 million.
Gujarat was rocked by violent anti-quota agitations in the mid-1980s, and the Patels, a dominant caste, were at the forefront of this agitation, demanding that the quotas for SCs/STs be scrapped; they labeled quotas as anti-merit and unfair. Since 2015, the Patels or Patidars have been on the streets, demanding to be classified as OBC; the movement has occasionally turned violent with damage to public property.
The Marathas, a predominantly landowning caste and a politically and economically dominant group in the state of Maharashtra, have been demanding to be included in the OBC category since the 1990s.
2. 103rd Amendment Bill
It is humbly submitted to the court that on 7th January 2019 union cabinet approved the 10% reservation bill for the economically weak sections of the general caste in public jobs and education. That amendment was passed in Lok Sabha with 323 members voting in favor and only 3 members were in against. Then it was subsequently passed in Rajya Sabha with a majority of 165 in favor and only 7 members were in against. Article 15(6) and Article 16(6) were added to it to provide jobs and admission to private institutes for studies.
2.1 The criteria or the eligibility
It is humbly submitted to the hon`ble supreme court that the amendment 103rd of the Indian constitution is not valid because for the following reasons:
The criteria or the eligibility which has been set to clarify the definition of economic backwardness is not correct in the context of the Indian situation. The criteria or the eligibility under which a person falls under economic backwardness is as follows:
Household income must be 8 lakhs and lower than that. But it is also submitted to the hon`ble court that 95% of the Indian population falls under this category. On 12th January 2018, the former union finance minister Mr. Arun Jately stated that only 76 lacks the Indian population has shown an income of over 8lakh. In which 55lacks are govt. employees.
M. Nagraj and others vs. Union of India
In the case of M. Nagraj and others vs. Union of India,[16] it was held that the govt. has to show in each case the inadequacy of representation and overall administrative efficiency before making any provision for reservation.
- A family must have agricultural land of fewer than 5 acres. But in India over 86% of land holding is less than 5 acres.
- The household in which the family is living must be less than 1000 sq. ft. But in India, 80% of the population has smaller than 500 sq. ft.
- Having a residential plot smaller than 100 yards in a municipality. But in India, it is 73% of the population has less than that.
- Having a residential plot of fewer than 200 yards in a non-municipality. It is also has been submitted to the hon`ble court that 69% of the population in India has less than said land.
So, the criteria or the eligibility which has been set for the Economic backwardness of the people is not correct in the context of India. It is not even correct in the Indian context, due to that criteria 79.6% of the Indian population of general caste is eligible for the 10% reservation.
Also, the Supreme court of India has set the limit of the reservation only to 50%[17]. But after the 103rd amendment of the Indian constitution it has been exceeded to 59%. While in some states like Tamil Nadu it has reached 69%.
So, based on the given text and data it is invalid in the Indian context and also unconstitutional.
2.2 The big issue of passing date and time
It is submitted to the hon`ble supreme court that amendment had been done on 2ndlast–day of the parliament. Why was not passed earlier? It was the topic of big debate. No one’s consent was being considered on that particular amendment. Which type of reservation is this if the govt. is giving the reservation to all public in the country?
This bill was not even sent to the selection committee for discussion or debate on this serious issue.
The supreme court has laid down that there is an implied limitation on legislative powers; the legislative cannot delegate the essential of the legislative functions[18].
2.3 Which type of reservation is this?
The reservation which is given to the general caste is apart from the reservation which is given to the SCs and STs. As acc. The data presented in subpoint 1 clearly shows that 79.6% of the population is eligible for the reservation. Here the competition arises that before the said amendment the students and the people from the general caste fought for the rest 50% of the reservation. Which was apart from the reservation of SCs and STs, so here the question arises to whom the reservation is given? If all the people are eligible for the reservation then to whom this reservation will be given? Here there is no point arises to create any new policy of reservation.
2.4 What is the purpose of reservation?
The main purpose of the reservation is to uplift the condition of the needy people by giving them a chance to fulfill their basic needs. Here in the present scenario the eligibility and the criteria which have been set by the union government. It is not correct and also not showing which section will uplift due to the said amendment. It is not showing whether the backward section will uplift or not. Here it clearly shows that the said reservation is the same for the person who earns Rs.50,000 p/m. and the person who is from below the poverty line. Here because of this it clearly shows that there is no clue if the section is uplifted.
2.5 Income tax slabs.
The income tax is a tax that is given by a person in the form of payment to the govt. for providing the means to earn the daily bread. Income tax slabs start from 2.5 lacks and vary from amount to amount. Here in the present scenario the govt. has fixed the annual income of the backward section is 8 lacks, on the other hand, they want us to pay tax. There is no logic behind the scenario of setting the criteria or the eligibility to the family income 8lacks.
There is no presence of any machinery has been devised by the executive to ensure the proof of the income is given into a certain method. Some so many families are not filing the ITRs. So, if the person is not filling ITRs then how will the govt. decide the family income of a person? It will lead to fake certificates.
Acc. To the report of the socio-economic caste center, in 2011 only 8.25% of the people in rural households. Which is more than Rs.10,000rest 92% don’t. then how the govt. will benefit the rest of the public?
2.6 Jobs
It is humbly submitted to the hon`ble court that job is the basic need of the country. And in context India, is suffering from that.
the total no. of jobs which have been created between the period of 2001 to 2018-2019 is just 7.3%. which is 0.4% per year. What jobs will be given to the weaker section of society?
Also, during the period of the BJP govt. only 45000 jobs are provided. If data remains the same, then it will be like giving the quota only to 4500people out of 800million people. How it will meet to the end?
In public sector enterprises between the period of 2006-2007 to 2016-2017. The number of employees and employers have been decreased to the extent of 38.7%.
In Orrisa the OBC reservation is 11% and 38.5% of the quota is for SCs and STs. The point to be noted here is that the general population in Orrisa is only 6%.
In 1993 the concept of reservation for OBC is presented before the legislature. At that time the creamy layer was set to only 1lakh. But from time to time it has changed, in 2004 it was 2.5 lacks, in 2008 it was 4.5 lakhs, in 2013 it was 6 lakhs and in 2017 it became 8 lacks. Why it is increasing day by day?
Kumara K.S. Jaya Shree & Anthrs. Vs. The State of Kerala
In the case Kumara K.S. Jaya Shree & Anthrs. Vs. The State of Kerala & anthers.[19] It was held that increasing income exceeding Rs.10,000 can’t be considered under the reservation schemes.
- Centre for Monitoring Indian Economy has stated that in the year 2018 11 million people lost their jobs. The report showed that the number of unemployed has been steadily increasing in the country. The number of employed recorded in December 2018 was 397 million which is 10.9 million less than a figure of 407.9 million seen a year ago at the end of December 2017.
- The saving rate of the country is below 30%, FTI is moving out of the country,
So, all the points mentioned here point out only one thing this country is not making jobs. If there are no jobs then to whom is the govt. will provide a reservation?
- Jobs are limited in India not everyone within their quota gets their jobs. The point is the family which is earning Rs.66,000/month is compared to the family which is of OBC and Dalits earning much less.
- The Dalits and OBSs who don’t get the job within their quota are separated from the EWS. Just because they belong to the section which is educationally and socially backward. That is the constitutional issue. How does the govt. has excluded those persons who earn only Rs.15,000 – Rs.20,000.
- Some magazines have also stated the following lines:
- News 18 on 28 June 2018: India should declare an emergency. Because of no jobs and also the education loan of students is pending.
- Quartz India on July 19, 2018: Zero growth in the Indian job market in 2018.
- Bloom berg on 20 September 2018: India has a big job problem it could get worse.
INDIRA SAWHNEY vs. UNION of INDIA
In the case of INDIRA SAWHNEY vs. UNION of INDIA (AIR 1993 SC 477),[20] it was clearly stated that “the reservation will not be given to the economically weaker category it is unconstitutional. That decision was taken by the 9 Judge bench”. Seeking this giving reservation based on economic backwardness is totally unconstitutional.
In said case it stated that policy of reservation cannot exceed the limit of 50% but Tamil Nadu, it’s found69%. That harms the right to equality Article 14 is also the basic structure.
It was declared that- “under Article 16(4) care should be taken to provide for the unreasonable excessive or extravagant reservation and reservation under article 16(4) should be in permissible and legitimate limit and any excess is liable to the challenge ‘as a fraud on the constitution[21].
There must be a judicial review of the same. Judicial review is the basic and essential feature of the constitution[22].
Conclusion
The policy of reservation has been produced for the welfare of mankind and to develop the community or the particular caste. But nowadays it become the game of politicians for the vote bank. The supreme court judgment is being overruled by some major parliamentary judgments and amendments. The MPs are not respecting or keeping in the eye of the orders and judgments of the supreme court, they are just doing the same only for the vote bank.
There must be a judicial review of the same. Judicial review is the basic and essential feature of the constitution.
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Footnotes
[1]The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
[2]Equality of opportunity in matters of public employment
[3]Balaji v/s state of Mysore (air 1963 SC 649)
[4]Aarti Ray Choudhary vs. Union of India (1974) 1 SCC 298
[5]there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.
[6]or clause (4a) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. Reservation on total number of vacancies of that year.]
[7]Devadasan vs. Union of India air 1964 SC 298
[8] constitutional law of India (4th edition 1993)
[9] state of madras vs. Champakam Doirairajan (air 1951 SC 226)
[10] Balaji Vs. State of Mysore 1963 SCR 439
[11]Akhil Bhartiya Soshit Karamchari Sangh(rly) vs. Union of India, AIR 1981 SC 298
[12]Ajit Singh I vs. State of Punjab, 1996 2 SCC 715
[13]Balaji Vs. State of Mysore 1963 SCR 439
[14]Heydon’s Case, A 16th-Century Ruling of The Exchequer Court.
[15]Conway V Rimmer [1968] AC 910, [1968]
[16]M. Nagraj vs. Union of India AIR 2007 SC 71
[17]Indra Sawhney Vs. Union of India (Air 1993 Sc 477)
[18] The Delhi Act, AIR 1951 SC 332
[19]Kumara K.S. Jaya Shree & Anthrs. Vs. The State of Kerala & Anthrs1976 AIR 2381 1977 SCR (1) 196
[20]Indira Sawhney Vs. Union of India (Air 1993 Sc 477)
[21]., Indra Sawhney Vs. Union of India (Air 1993 Sc 477)
[22] S.P. Sampath Kumar Vs. Union of India Air 1987 Sc 386, Subhash Sharma Vs. Union of India Air 1991 Sc 631
