reservation
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This article is written by Lavish Sharma, from the Institute of Law Nirma University and modified by Gitika Jain. This article discusses whether the extravagant quota is a fraud in the constitutional policy of reservation. 

Introduction

The BJP government, headed by Prime Minister Narendra Modi, has launched a bill to give 10% of the quotas to the economically weak in the general category. This community has not yet received any gain from any kind of reservation, but they are now qualified for a reservation with the passage of the bill in both Houses of Parliament on 9 January 2019. As soon as it was introduced, BJP supporters hailed it as a major reform to introduce economic justice into a system that had previously depended on social backwardness (defined by caste) to determine people’s eligibility for reservations. Even the opposition endorsed the legislation, restricting its critique to the particular requirements set down for assessing economic backwardness, to the argument that there are not enough new opportunities to be generated, or to the possibility that it might be reversed by the Supreme Court and was simply a political ploy. These three of them are legitimate critiques, but they ignore a far bigger, tragic error in this current reservation.

Reservation in India

Reservation in India is a program of affirmative action that offers equality in schooling, jobs and governance for traditionally and presently marginalized communities of Indian society. Enshrined in Articles 15 and 16 of the Indian Constitution, it requires the Indian Government to impose quotas to ensure that every “socially and educationally deprived class of people” is fairly reflected in public life. This is meant to achieve the pledge of equality enshrined in the Constitution of India. 

Reservation is mainly provided to three groups: Scheduled Castes, Scheduled Tribes and Other Backward Communities abbreviated as SCs, STs and OBCs. There are communities who have experienced social and economic injustice in the past and/or current and have been seriously under-represented in public life. Originally, the reservation was rendered only to the SCs and the STs but was later expanded to the OBCs in 1987 after the adoption of the Mandal Commission survey. There are tax quotas on the EWS (Economically Poorer Sections) and the OBCs (Other Supporter Class) and there are no profit restrictions for representatives of the Scheduled Castes and Scheduled Tribes.

Reservation Scheme

Employment

A set proportion of government and public sector workers in India is reserved for groups of citizens mostly dependent on their caste or race. In 1993, the Supreme Court ruled in the Indra Sawhney case that reservations over promotion in work was “unconstitutional” and not in line with the democratic constitution, but permitted it to proceed for five years. In 1995, the 77th amendment to the Constitution was introduced to modify Article 16 until the five-year duration elapsed, with the intention of extending the SC/ST quota on promotions. This was subsequently revised by the 85th amendment to grant SC/ST applicants the privilege of substantive seniority on the basis of a reservation. The 81st amendment to the Constitution was introduced in order to enable the Union to view the backlog of reserved vacancies as a distinct and special category of which the limit of 50% did not apply. The 82nd amendment added a clause in Article 335 of encouraging States to offer exemptions to SC / ST applicants for promotion.

Education

In India, scholarships or student assistance are applicable to SCs, STs, BCs, OBCs, Hindus, Muslims, and other minorities. Just about 0.7% of scholarships or student assistance in India are dependent on merit, despite the disproportionately insufficient representation of the above-mentioned groups of jobs and education for demographic, social and cultural purposes.

Current regulations for the adoption of the NDA Government do not allow for a scholarship system and a reservation limit for students and college workers under the Central University and State University authorised by the UGC.

State

In a central government-funded higher education institution, 22.5 percent of the available seats are reserved for Scheduled Caste (SC) and Scheduled Tribe (ST) students (7.5 per cent for STs, 15 per cent for SCs). This reservation percentage was raised to 49.5 per cent, with an extra 27 per cent reservation for OBCs. This formula is still observed in Parliament and in other polls where a few electoral districts are reserved for voters from other groups (which will be replaced by the Delimitation Commission in 2026). The Delimitation Commission is appointed by India’s President and functions in conjunction with India’s Election Commission.

It would have mainly two functions i.e. 1) Determine the number and boundaries of constituencies to make all constituencies nearly equal in size; and 2) To define seats reserved for Scheduled Castes and Scheduled Tribes, wherever they have a relatively large population.

new legal draft

124th Amendment, 2019

The Constitution (124th Amendment) Act, 2019 deals with the definition of “economically disadvantaged groups of people rather than genders” generally alluded to in Articles 15 and 16, i.e. Scheduled Castes, Scheduled Tribes and Other Backward Groups.

Under the Act, the State is now in a position to render some special provision for the promotion of these groups, in particular with regard to their admission to educational institutions, including private educational institutions, and for the reservation of positions or posts in their favour, in addition to the current quota and subject to a limit of 10% of posts in either group. 

The term “economically weaker sections” is defined in the clause 4 of the Act as those which might be reported by the State from time to time on the basis of family income and other measures of economic disadvantage. As of now, all concessions under Articles 15 and 16, whether in jobs or educational institutions, have been rendered to groups which are still defined ‘classes’ in the old colonial language. In other terms, all community or party entitlements that are financially weaker have been classified as economically and historically inferior owing to a long tradition of discrimination and injustice.

When new names are introduced to the list (or schedule) of such ‘groups’, for example, for Other Backward Classes’ quota, since 1989, the normal practice is for the government to focus on the conclusions of an impartial commission or body of experts, which has carried out an inquiry and identified the empiric evidence of the social and cultural deficiency of the latter. Such findings contribute to the group’s mutual social standing. However, if they differ in their particular conditions, all those who belong to the caste community shall be entitled to the advantages of the quota. So long, this has been the main reason for quotas in India. The theory was upheld by the courts in a range of judgments which disallowed reservations on other grounds, such as economic disadvantage, especially in Indra Sawhney vs Union of India (1992), in which the Supreme Court held that no classification could be made for reservations by depending solely on economic criteria.

The present constitutional change is an empowering clause granting the State the legislative right to render exceptions on grounds of economic disadvantage. It could be achieved in at least two forms which are discussed below.

First, different caste categories not actually included in Scheduled Castes, Scheduled Tribes or Other Disadvantaged Sections will be identified as qualifying for a portion of the existing 10% quota on the basis of some economic disadvantage requirements. While discussions on the Bill for economically weaker sections have not yet posted this prospect, there is nothing in the new Act that forbids the State from notifying or claiming, Patidars or Jats or Marathas as “units” entitled to a reservation under the Act. It must be recalled that the historical context of this law involves violent protests by these organisations in many western and northern Indian states. However, the metric of economic poverty would refer to the population as a whole; in other terms, the cumulative measure of economic distress will have to be used to classify the community as economically poor.

Judging from meetings in Parliament and subsequent reports and leaks from official outlets, the path in which the policy is likely to step, at least for the time being, is not as mentioned above. Rather, the whole “general” category of citizens who are not included in the “classes” currently entitled to a reservation must be regarded as a class from which the upper stratum is to be excluded in terms of economic status. The remainder is to be classified as “economically weaker sections.”

This is a concept which is claimed to have been introduced in the vocabulary used in Article 46 of the Directive Principles Chapter of the Constitution. However, when Article 46 talks about fostering ‘with great consideration, the educational and economic needs of the poorest sections of the citizens’, the Constitution Amendment Act transforms it into ‘economically weaker sections of the citizen,’ which is not the same thing at all.

Second, unlike the “classes” constituting Scheduled Castes, Scheduled Tribes and Other Backward Classes under which each jati is explicitly identified and mentioned, there is no way in which any such economically poor “section” can be called or implied by its social classification, because, unlike caste categories, there is no traditionally defined social identification for any such economically weak “section”. The effort to create a distinction between the reasons for the reservation of socially oppressed “classes” and economically deprived “sections” is dishonest and deceptive: they are two completely separate species. However, those endorsing the legislation, including ministers speaking in Parliament, pointed to requirements such as the family income of Rs 8 lakh or land possession of more than five acres as cut-off figures for removing the wealthy from the general group of residents.

The reasoning is, obviously, that such are the cuts used to define the so-called “creamy layer” between the OBCs, which, according to the rules of the Central Government, is not entitled to a reservation. The same calculation, it is claimed, would also extend in the case of the General Group. Nevertheless, the two “classes” are not equivalent. The OBC caste community is automatically entitled to a reservation. Certain people who are wealthy are then considered exempted from the party eligibility. The general group of people who are not SC, ST or OBC do not form a community that is jointly entitled to a reservation, thus, the definition of the “creamy layer” is meaningless.

Future ahead

The philosophical differentiation between human and collective freedoms is a matter of considerable discussion in the mainstream political philosophy of Western democracy. It has been a topic of controversy in recent decades surrounding affirmative action for ethnic groups in the United States, aboriginal rights in Canada, Australia and New Zealand, and multiculturalism in Europe. 

In India, building on Dr B.R. Ambedkar’s lifelong intellectual and political struggles, a relatively consistent theory of equal justice for underprivileged ethnic communities which has become the perpetrators of social injustice, is now well-founded in our constitutional constitution. In fact, judicial rulings have supported the notion that a quota for jobs and schooling, not reaching half of the vacancies open, is acceptable for caste communities experiencing social disadvantages. It is the result of civil case law in India. The problem with the 124th amendment is that it essentially incorporates the concept of the human right to a reservation into the context of a statutory clause intended to grant mutual rights to classes. It is sure to add to a great deal of uncertainty, chaos and social strife.

The main argument here is that the 50 per cent cap on the quota levied by the courts has now been violated by a specific clause of the Constitution. There is now every likelihood for unique forwards, such as Jats or Patidars, to step up their demand to party quotas on economic grounds. They may also demand that the reservation quota of a specific caste community be proportionate to the real share of the population. This would revive the demand for a new census of the socio-economic status of all castes.

Therefore, after the 50% cap has gone, the basis for reservation is no longer that of offering social justice to a minority community that has traditionally been discriminated against (which was the core claim of Ambedkar) but that of alleviating the economic poverty of the majority of the population. When this claim gathers traction and power, it may significantly negate the original concept of reservation as a tool for alleviating systematic social injustice against other caste classes. In addition, the concept of individual rights may then be extended to the full abolition of the caste reserve and to the creation of a fundamental law for individual verification of economic status.

Maybe, this is why some who have long rejected the very concept of reservation and called for the primacy of human merit, have not only resisted the new attempt to extend the reach of the reservations but also supported it in certain instances. It is another thing, of course, that there are barely any positions in the government sector that could be provided under the current quotas. This is why the government is calling for an increased higher education budget, which is seen as a fairly expensive political initiative. This is reported that there would be a rise in seats to meet the existing quotas.

Conclusion

There was a moment when our lawmakers were engaged in an extreme, highly reasoned and well-researched debate regarding the legitimacy of the democratic procedure. In this respect, the discussion on the representative assembly remains outstanding. However, in more modern years, the Houses of Parliament and their commissions have also performed impressive research. It is disappointing to see that, in the present situation, our parliamentarians have so pitifully fallen to the supposed danger of political retaliation. It is not a positive indication of the prospects of parliamentary democracy in India. But soon a positive ray of light will appear in the future ahead, hopefully. 

References

  1. https://www.bloombergquint.com/opinion/reservation-why-the-10-quota-could-fail-the-constitutional-test-by-indira-jaising
  2. https://thewire.in/government/the-10-reservation-is-a-cynical-fraud-on-the-constitution
  3. https://www.thehindu.com/opinion/op-ed/questions-of-promotion/article24116633.ece
  4. https://www.thehindu.com/opinion/editorial/another-quota-question/article30170111.ece

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