Introduction
The term “Reservation” refers to the act of keeping back, withholding or setting apart. Reservation is an act of setting limited conditions or withholding from the complete exposition. The reservation policy exists in India before Independence for uplifting the backward society in the country. Reservation is offered in the educational sector, during recruiting for government jobs and also, for the seats in Union and State Assembly. This policy reserves a certain percentage of seats (not more than 50% in total) in government educational institutions, government jobs, and assemblies for backward class people such as Scheduled Castes or Scheduled Tribes, Other Backward Classes (OBC), and it also includes women.
In India, reservation policy is an age-old policy which exists for ages. In ancient India, there was a practice of “Untouchability”, in other words, the lower-class community was ignored in the caste system. The Caste System is also known as the “Varna System” and it is divided into four jatis or classes i.e. in Brahmin, Kshatriyas, Vaishya, and Shudra. The Brahmins and Kshatriyas fall under upper jati or class, mostly they were priests or scholars and rulers or warriors or administrators respectively. The Vaishya jati is lower than Brahmins and Kshatriya, who involves in business activities, or they are artisans, agriculturists, etc. There was another class known as Shudhras or “Avarnas”, they are untouchable and considered as impure in the society. They are mainly laborers and bottom-line service providers. This community resides outside the village and they had given no social rights and also they were not allowed to establish their connection with the upper-class community. They were deprived of entrance into temples; even they were not allowed to use common lakes or rivers and wells, etc.
There is one well-known example of untouchability practice during the period of Dwaparyuga i.e. in Mahabharata. There was one warrior known as Karna (a Sut Putra), was not allowed to showcase his talent in front of other Kshatriyas prince of Hastinapur and discriminated against based on his caste because at that time only Kshatriyas were allowed to learn Shastra- Vidya (i.e. education regarding weapons used in wars) and participate in wars with other Kshatriya kings. Also, he was discriminated against based on his caste in Draupadi’s Swamwara and he was not allowed to showcase his talent. He was also cursed by his teacher Parshurama (the incarnation of Lord Vishnu) because he hides his original identity that belonged to a lower community and was not allowed to learn shastra- vidya.
This practice harmed the development and growth of Indian society. Thus, for ages, this practice continues which harms the development in the society. To discourage this type of practice in society and to the uplifting backward community, the reservation policy came into force. In Indian Constitution, there are provisions of reservation policy that helps to uplift backward class communities such as Scheduled Castes or Scheduled Tribes, Other Backward Classes (OBC) and it includes women also. This policy is against equality before law i.e. every individual is equal in the eyes of law but reservation policy helps to uplift backward class to such extent that they become equal among others and treated equally.
History of Reservation Policy in India
Pre- Independence Scenario
1. In the year 1882, the idea of reservation policy based on the caste system was conceived by William Hunter and Jyotirao Phule.
2. In the year 1931, the Round table Conference was organized in London and its chairman was British Prime Minister Ramsay Macdonald. In this Round Table Conference, there were many Indian delegates of Different interest groups were present. In this conference, an appeal for a separate electorate was made by Dr. B.R. Ambedkar and other minority groups, but it was strongly opposed by Mahatma Gandhi.
3. In the year 1932, the Communal Award (it made provisions for separate electorates for Hindu, Muslims, Sikhs, Christians, Anglo- Indians, Europeans, and Dalit communities) was presented by British Prime Minister Ramsay Macdonald.
4. The Communal Award was criticized by Mahatma Gandhi but it was strongly favored by Dr. B.R. Ambedkar and other minority groups. As a result, Mahatma Gandhi went on a Hunger strike against this award.
5. In the same year, after a long negotiation, the Poona Pact, 1932 came into force and it was signed by Mahatma Gandhi and Dr. B.R. Ambedkar. Poona Pact, 1932 brought a single general electorate for each seat in British India with certain reservations.
Post- Independence Scenario
1. After India got independence, the scenario of reservation policy was changed or we can say it become stronger than the pre-independence era. Dr. B.R. Ambedkar was the chairperson of the Drafting Committee of Constituent Assembly. Initially, while framing the Constitution of India, a reservation policy was not included.
2. In the year 1951, under Article 15[1] of the Indian Constitution, clause (4) was added as a result of the Constitution (1st Amendment) Act, 1951, the reservation policy for Scheduled Castes (SCs) and Schedule Tribes (STs) was introduced.
3. In the year 1991, by the recommendation of the Mandal Commission, OBC (Other Backward Classes) was included in the scope of reservation policy. Under “Article 340” of the Indian Constitution, the President of India formed a commission for socially and educationally backward classes under the Chairmanship of B.P. Mandal. The commission was popularly known as Mandal Commission.
The Mandal Commission proposed 27% of the total seats for government jobs were reserved for approximately 52% of the OBC population in the Country. OBC includes the list of 3743 castes and underprivileged depressed backward classes include the list of 2108 castes.
4. In the Constitution (103rd Amendment) Act, 2019, 10% reservation was provided in educational institutions and Government jobs for “Economically Backward Classes”, an unreserved category.
Constitutional Provisions Governing Reservation Policy in India[2]
1. Clause (4) of Article 15: Special provisions for the advancement of Backward classes
Article 15 (4) is an exception of clauses (1) and (2) of this article. This clause was inserted in the Constitution (1st Amendment) Act, 1951 as a result of State of Madras v. Champakam Dorairajan.[3] In this case, the Supreme Court observed that Madras Government had reserved seats in state Medical and Engineering College for the backward community classes based on race, caste, and religion to promote social equality. The Court held that the law was void because it classified students based on their race, caste, and religion irrespective of their performance. The Court also held that the Directive Principle of State Policy cannot override the Fundamental Rights enshrined in the Indian Constitution.
To modify the effect of the decision, Article 15 was amended and in Constitution (1st Amendment) Act, 1951, clause (4) was inserted in Article 15. Article 15 (4) states that the State is authorized to make any provisions for the improvement of socially and economically backward classes such as for SCs/STs.
2. Clause (5) of Article 15: Provision of reservation of backward classes in Private Educational Institutions
Clause (5) was inserted in Article 15 of the Constitution of India under the Constitution (93rd Amendment) Act, 2005. This amendment came into force in 2006. Nothing in this Article 15 (5) and Article 19 (1) (g) of the Indian Constitution shall prevent the State from making any provisions for the improvement of socially and economically backward classes such as for SCs/STs and OBC related to the admission in Private Educational Institutions whether State-aided or not, other than minority educational institution (referred in clause (1) of Article 30).
3. Clause (3) of Article 16: Reservations in Government Jobs on the ground of residence
Article 16 (3) of the Indian constitution is an exception of clause (2) of Article 16 which prohibits discrimination in Government Jobs based on residence. However, there may be good reasons for reserving certain government posts on the ground of residence. Clause (3) of Article 16 empowers Parliament to regulate by law the extent to which it would be permissible for a State to depart from the above principles.
By exercising the power conferred in Article 16 (3), the Parliament has passed the Public Employment (Requirements as to residence) Act, 1957. This Act provides that no one will be disqualified on the ground that he or she doesn’t belong to this particular state. This Act provides exceptions in the state of Himachal Pradesh, Telangana, Manipur, and Tripura for a period of 5 years because of the backwardness of these areas.
4. Clause (4) of Article 16: Reservation for Backward Classes in Public employment
Clause (4) is the second exception of Article 16 (1) and Article 16 (2). Article 16 (4) empowers the State to make any provisions for backward class citizens, who are adequately not represented in the services under the State. Provisions are made regarding reservations of appointment of government posts.
5. Clause (4- A) of Article 16: Reservation for Backward Classes in Public employment
Clause (4-A) is the third exception of Article 16 (1) and Article 16 (2). This clause was inserted in Constitution (77th Amendment) Act, 1995. Article 16 (4-A) empowers the State to make any provisions for backward class citizens such as SCs/ STs and OBC, who are adequately not represented in the services under the State. Provisions are made regarding reservation in matters of promotion to any class or classes of government posts in the service of the state.
6. Article 17: Abolition of Untouchability
This article abolishes “Untouchability” and prohibits its practice in any form in the country. The offense of untouchability is punishable under the law.
Parliament by exercising its powers conferred in Article 35 of the Constitution has enacted the Untouchability (Offences) Act, 1955. Further, the Act was amended by the Untouchability (Offences) Amendment Act, 1976 to make the law more stringent or rigid to eliminate untouchability from society.
7. Article 39 of the Constitution directs States to ensure and provide equal justice and free legal aid to the economically weaker section of the society.
8. Article 45 of the Constitution imposes a duty on the State to raise the standard of living and health of the economically weaker section of the society.
9. Article 330 and 332: Reservation for the seats in Assemblies
These Articles make available specific representations through the reservation of seats for Scheduled Castes (SCs) and Schedule Tribes (STs) in Parliament (Lok Sabha or Lower House) and State Legislative Assemblies (Vidhan Sabha).
10. Article 243- D of the Indian Constitution provides specific representations through the reservation of seats for Scheduled Castes (SCs) and Scheduled Tribes (STs) in every Gram Panchayat.
11. Article 233- T of the Indian Constitution provides specific representations through the reservation of seats for Scheduled Castes (SCs) and Schedule Tribes (STs) in every Municipality.
12. Article 335 of the Constitution makes it clear that claims of the members of SCs/ STs must be consistent with the efficiency of administrators, in the making of appointments to services and posts in connection with the affairs of the Union or the State.
Is Reservation Policy is required in the present scenario?
Somewhere, reservation is required in the present scenario such as to the economically weaker section of the society. But caste-based reservation is not required in India because now it is merely a vote bank more rather than to provide welfare to the backward classes. Initially, the reservation policy came only for the first five-year plan to boost or uplifting the backward classes in such a way that they should be equally compared with non-backward classes. The primary objective is not to continue this practice for a long period, but due to lack in our political system, this practice continues. Now, the reservation policy does not serve for the development of the society but now it can deteriorate the society.
Now, this policy makes non- backward classes more unfavorable because they didn’t get fair jobs and education opportunities due to the high rate of reservation in it. In other words, there is stagnation in employment and education growth in upper-class people. This will cause unemployment in the upper classes which leads them to economically weaker. Now, the situation is upper class also demands reservation who is below the creamy layer or an economically weaker section.
Thus, it is necessary to eliminate the caste-based reservation system from India and implement such policies that only educationally or economically weaker sections can avail the benefits of reservation policy. Hence, there is a need to create awareness among the people about the worst impact of the caste-based reservation policy in India. India can never be a developed country until reservation policy is wiped out from society.
Landmark Judgments of reservation Policy
1. In State of Madras v. Champakan Dorairajan (1951),[4]
This is the first landmark case due to which Reservation policy was enshrined under the Constitution of India as a result of the Constitution (1st Amendment) Act, 1951.
Facts:
The State of madras had issued an order which was known as Communal G.O. By this order, the state reserved the seats for students based on race, caste, and religion in State Medical and Engineering College. The Government contended that they passed the order for promoting social justice for all classes as required in article 46.
Issue raise:
Whether the G.O. violates the provision of Article 15 (1) and Article 29 (2) of the Indian Constitution?
Judgment:
The Seven benches Judge in Supreme Court held that the Communal G.O. violates the provision of Article 15 (1) and Article 29 (2) of the Indian Constitution because classified students get admission based on race, caste, and religion, not on the merit base. The Court also ordered that the Directive Principle of State Policy cannot override the provisions under Part III (Fundamental Rights) of the Constitution.
2. In R. Balaji and Ors. v. State of Mysore (1963),[5]
Facts:
The State of Karnataka passed an order and declared that except Brahmans, all the castes come under backward classes. The State reserving 68% seats in State Medical and Engineering colleges for backward classes and only 32% seats were remaining for the candidates who secured higher marks and get admission on merit. Reservations of seats were categorized as: Backward Classes- 28%; More Backward Classes- 20%, Scheduled Castes, and Tribes (SCs & STs) – 18%.
The validity of the impugned order was questioned under Article 32 of the Indian Constitution. In other words, the Writ Petition was filed in the Supreme Court under Article 32 for this impugned order.
Judgment:
The Supreme Court of India held that:
i. The further sub-classification between backward classes and more backward classes was not justified under Article 15 (4). “Backwardness” envisaged in Art. 15 (4) must be both social and educational, not either social or educational. Though caste may be a relevant factor for ascertaining social backwardness, it should not be a sole test for ascertaining a particular class of people as a social backward class.
ii. The reservation was made under Art. 15 (4) of the Constitution must be reasonable and it includes considerable factors like poverty, education, place of habitant, etc. also reservation policy should not nullify the main objective of equality enshrined under Art. 15 (1), it means a reservation for backward class people should be less than 50% in total.
iii. Clause (4) enables the State to make special provisions and had no power to make exclusive provisions for the advancement of backward classes. The state should not ignore altogether welfare while making provisions for the betterment of backward classes.
3. In Indra Sawhney v. Union of India (1993),[6]
This case was popularly known as Mandal Commission Case. The Supreme Court by 6:3 majorities held that-
i. The further sub-classification between backward classes and more backward classes was justified under Article 16 (4), but as a result of sub-classification, the reservation cannot exceed 50% in total.
ii. Union Government may reserve 27% of Government jobs for backward classes, provided that creamy layer (socially advance persons) are eliminated from this reservation policy.
iii. The reservation policies are applicable only for the initial appointment for Government jobs, not for further promotion. And also, the seats reserved for jobs should not exceed 50%.
4. In Nagaraj v. Union of India (2006),[7]
The Judged bench in Supreme Court held that-
i. The reservation provision does not breach the ceiling limit of 50% and eradicates the creamy layer.
ii. Articles 16 (4-A) and (4-B) by the 77th, 81st, 82nd, and 85th Amendment Act, do not alter the structure of Article 16 (4) and these amendments are held valid in nature.
iii. These constitutional amendments retain the controlling factors namely- backwardness and inadequacy of representation which enables the states to provide reservation, keeping the view of the overall efficiency of the State administration under Article 335.
iv. The State is not bound to make provisions regarding reservation for backward classes (SCs/ STs) in the matter of promotion. However, the State makes any such provision for the advancement of SCs/ STs, and then they have to collect quantifiable data showing backwardness and inadequacy of representation of that class in public employment.
5. In Umedsinh P. Chavda v. Union of India and Ors. (2020),[8]
Facts:
In this case, the Central Government authority has decided that they do not give reservations to Other Backward Classes (OBC). The validity of the impugned order was questioned under Article 32 of the Indian Constitution. In other words, the Writ Petition was filed by Political Parties of Tamil Nadu in the Supreme Court under Article 32 for this impugned order. Also, the petitioner contended that the fundamental rights of OBC Candidates get violates.
Judgment:
The Court held that the reservation policy is not a fundamental right. Thus, the Writ petition which was filed under Article 32 was invalid because the writ petition was only filed in case of any infringement of Fundamental rights of any individual.
Suggestions and Solutions
While considering the problem of untouchability and casteism, reservation policy is the better solution to eliminate these problems. But, in India, reservation policy is based on castes. Thus, lower caste or communities in the society were only eligible for reservation.
In modern India, reservation policy is based on the caste system and it discourages the development and growth of the society. In rural areas, even general category people belonged to economically backward classes, but they were not getting any reservation because, in India, reservation policy is based on the caste system.
To discourage these practices, there are certain suggestions and solutions regarding reservation policy:
1. Government has to shift its focus from socially backward classes to economically or educationally backward classes.
2. If socially backward classes (SCs/ STs, and OBC) increase their standard of living by getting reservations in education and government job, then the government should eliminate them from getting any reservations.
3. Reservation policies are allowed to backward classes up till the non-creamy layer. In other words, eliminate creamy layer backward classes from getting any reservations.
4. A family belongs to a backward class such as SCs/STs but if one of the members is a high ranked officer (such as IAS, IPS, Principal in school, Judge, etc.) or a high-income professional (such as CA, CS, doctor, CMA, Board of Director of any Company, CEO, etc.) or others having high income should eliminate from reservation criteria.
Conclusion
In India, reservation policy is an age-old policy which exists for ages. The primary reason for adopting reservation policy after independence is to uplift the lower segment of the society who is socially and educationally backward. From reservation policies in a country, people who belonged to the backward classes get opportunities to uplift themselves to such extent that they may get a fair opportunity to compete with the upper classes and marked the position as equal to them. The primary focus of this policy to ensure equal justice among everyone that no one shall deprive of social justice. But the primary reason lost its spirit and now it is merely a vote bank policy rather than the welfare of backward classes.
In the present scenario, the reservation policy is not only available for backward classes (such as SCs/STs, OBC) but it is also available for a physically disabled person, PWD, and economically weaker section (it also includes upper class) that are neglected by the State and have no representation. In this way, more than half number of population of a country is categorized under reservation policy. This leads to stagnation in the employment and education sector which leads to unemployment in non-backward classes.
References
1. https://www.dictionary.com/browse/reservation
2. https://blog.ipleaders.in/reservation-policy-india/
3. https://www.casemine.com/search/in/bill%2Bof%2Brights%2Bprotections
4. https://www.legalbites.in/reservation-policy-in-india/
5. http://www.legalservicesindia.com/article/1331/Critical-Analysis-on-Reservation-Policy-in-India.html
Book Referred
J.N. Pandey, Constitutional Law of India, 56th edition
[1]Constitution of India, 1950
[2]Constitution of India, 1950
[3]AIR 1951 SC 226
[4]AIR 1951 SC 226
[5]AIR 1963 SC 649
[6]AIR 1993 SC 477
[7] (2006) 8 SCC 212
[8]Writ Petition(s) (Civil) No(s).346/2020
This article has been written by Aditi Sahu, 4th Year B.B.A.LL.B Student at Banasthali Vidyapith.
