Today is 129th birth anniversary of Bhimrao Ramji Ambedkar, a towering personality in Indian freedom movement and framer of the Indian Constitution. His emancipatory work for Schedule Cast (SC) and other marginalised section of Indian society makes him a revered figure among them. However, it will be a gross injustice to him if we only restrict Ambedkar as a leader of that specific section of population. He was a true genius, a great political scientist, a remarkable economist, a jurist, a polyglot and, above all, ray of hope of millions of those who were thrown into darkness of slavery, untouchability and pauperisation since generations. Awarded Bharat Ratna only in 1993, he is one of those personalities whose stature have grown by time. A lot many articles must have published today in different platforms regarding his life and work, I will restrict myself to one of the outcomes of his political struggle, which is highly contentious as well, i.e. “Reservation”. Wherever the discussion regarding reservation takes place, my common experience is that it has a tendency to get divided in to two sections. One those who support and other those who oppose it. However, my purpose in this article is very simple. I would try to explain how the judicial interpretations, judgments and government actions have evolved over the period of time regarding this policy of reservation.
Our constitution rests of the principle of balance between Parliamentary Sovereignty and Judicial Supremacy. This simply means that Indian Parliament has right to frame legislation which it deems necessary, however, these legislations are consistent with the Indian Constitution will be decided by the Supreme Court. Indian constitution give the fundamental right to each citizens. One among them is “Right to Equality”. Which means, in simple language, every person will be same in the eyes of the law and there will be no discrimination based on caste, gender, religion, race and place of birth. However the policy of reservation apparently seems to be discriminating. People from specific communities or categories are given reservation in educational institutions, government jobs and in political representation. These measures were taken to uplift the socially, educationally (and recently economically) section of society. The whole purpose, as per the proponent of reservation is to bring more equity in the society.
To understand that equality is not always desirable and concept of equity is more justifiable, we can look to the following representation
Here we can see, in first half, everyone stands on the same plank of same height which represents the equality. However, in second part of the image, the one with shorter height is given more favour so he can also enjoy the game equally, which was not possible in earlier case. This positive discrimination is called equity. Reservation, as per those who advocates the policy, serves the same purpose. However those who opposes this policy, as per them, it’s just the gross injustice inflicted upon the meritocracy. They say that even if the caste system were prevalent in past and out of that many disabilities were imposed on so called lower caste, still why to punish the current generation for the act which they haven’t done.
Originally, reservations were given to the people from SC/ST community. The Scheduled Castes and Scheduled Tribes comprise about 16.6% and 8.6%, respectively, of India’s population (according to the 2011 census). If we look at the reservation figure for these two communities, it stands in proportion to their population. People from Schedule Caste gets 15% and from Schedule Tribe gets 7.5% reservation.
In 1979, Morarji Desai government, invoked the article 340 of the Indian Constitution and formed Second Backward Class Commission under the Chairmanship of B.P Mandal to investigate the conditions of the socially and educationally backward classes and to suggest measures for their progress. After nearly one year the commission submitted its report and identified 3743 social groups which were educationally and socially backward. For their advancement, the commission suggested that they should be given 27% reservation in Government Jobs (not in educational institutions). However, one should keep in mind that 27% in not an arbitrary number but a constitutional necessity. The reason being that in 1963 Supreme Court of India has given a judgment in which governments were barred to give reservation more than 50% in government jobs in a year. Since SC and ST reservation (15%+7.5%=22.5%) accounts for approx. 23% hence 27% OBC reservation will save the possibility of judicial scrutiny. However, the Janta Government collapsed and the commission report was not implemented immediately. It was implemented 10 years later by V.P. Singh government, and they awarded 27% reservation to Other Backward Class (OBC) community in government jobs. In 1991, P.V. Narsimha Rao government made few changes and added two more provisions: First, creamy layers among OBC will not get benefit of reservation and Second, he also proposed 10% reservation for Economically Weaker Sections of the so called upper caste.
When this policy of the government for giving reservation to OBC came, there were fierce opposition to this. Many litigations were filled in the Supreme Court and finally SC gave a landmark judgement in the Indra Sawhney v. Union of India, (1992) which is also Known as Mandal Case.
The important outcomes of the judgement
*Creamy Layers among OBC should not enjoy the Benefits of Reservation
*SC rejected the 10% quota given to Economically Weaker Section among General Category
*Reservation should not exceed 50% in a year
*There should be reservation only at entry level and not in Promotions
*Carry forward rule should be there but it should not exceed 50%
However government took several steps to nullify the Supreme Court order. Through 77th Constitutional Amendment in 1995, government enabled reservation in promotion as well for SC and ST community. By the 81st Amendment Act of 2000, ruling with regard to backlog vacancies was nullified. By 85th Amendment Act of 2001 the government allowed ‘consequential seniority’. But no steps were taken in regards the nullification of reservation given to General Category. Very recently in 2019 through 103rd Amendment Act government gave 10% reservation to EWS category from General Category.
I tried to present, in brief, the history of reservation in India. Initially our framer of the constitution allowed reservation in political representation for only 10 years but subsequent amendments of the constitution it is still in continuation. Hope this brief write up will help you to give some insight.
Do let me know your views on Reservation System in India. #StaySafe
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