This article is written by Anupam Bhaduri, from Jogesh Chandra Chaudhuri Law College, Calcutta University. This is an exhaustive article that deals with a comprehensive study of the reservation system.
The idea of creating a caste-based reservation system was conceived in 1882 by William Hunter and Jyotirao Phule. However, the reservation system, as it is today, came into existence in 1933 with the ‘Communal Award’ introduced by the then British Prime Minister Ramsay Macdonald. The award sought to make separate electorates based on the different communities present in India, namely Muslims, Sikhs, Anglo Indians, Indian Christians, Europeans, and the Dalits. This was followed by elongated debates, and after much negotiations, the Poona Pact was signed that stated that there would be one single Hindu electorate with certain reservations.
Post-independence, the reservation was only provided with the scheduled castes and the scheduled tribes. Following the findings of the Mandal Commission, OBCs were included within the reservation list in 1991.
Legal provisions for reservation
The provisions stated under Article 15(4) and 16(4) of the Indian Constitution allow the Central, and the State Government to reserve seats for the SCs, and STs for government services. Following this, in the 77th Constitution amendment Act, clause 4(A) was introduced in Article 16 in which allowed the government to provide reservation in promotions. This clause was later edited in the 85th amendment to accommodate for the consequential seniority for the SCs, and STs promoted. Other provisions of the Constitution, namely Articles 330 and 332, 243D, 335 also mention the specific reservations for proper representation of the minorities in the Panchayats, the Parliament, and the municipalities.
Caste based reservation vs economic reservation
In the case of Indra Sawhney v. Union of India, the Supreme Court of India held that the reservation cap could not exceed 50%. Hence it was held that since the apex court had consistently held that the reservation quota guaranteed under the provisions of Article 15(4) and 16(4) could not surpass 50%, any reservation instances found over 50% would be liable to be stuck down.
The Economic Reservation Bill which was later added to the Constitution of India in the 124th amendment was defended on the ground that the upper cap to the reservation was intended for caste-based reservation, and hence would not be applicable to the economic reservation that was implemented.
Math problem to the reservation
The following table is a quick glance at the reservation status in India.
Reservation quota in percentage
Other Backward Classes
The total number of seats reserved thus amounts to 60% of the total seats allotted. This clearly invalidates the 50% cap of the reservation that was previously agreed to by the apex court.
The main debate against economic reservation lies in the fact that the apex court has stated previously that economic condition cannot be considered as the sole criterion for reservation. Even when the states have tried to create reservations based on economic inequality, the courts have quashed it based on the grounds that the provisions of Article 16(4) seek to provide reservation on the grounds of class and castes, not economic conditions.
The Supreme Court, on January 21st, 2019 upheld a 2017 judgment passed by the Allahabad High Court. The judgment sought to consider the departments as a unit instead of a college or university.
The issues with the appointment in this fashion create a problem. Under this scheme, an appointment from the reserved categories will be made only after 14 appointments in that specific department has been made. This is referred to as the 13 point roster. In the case of treating the university or the college as a whole which is also known as the 200 point roster, the reserved categories are appointed as soon as a minimum of 200 appointments have been made. Hence, in the case of the 200 point roster system, the deficit in the requisite number of appointments of reserved categories is easier to make up for rather than the 13 point system based on unitary departments.
The problem with the 13 point roster system can be explained as follows:
The 13 point roster system was incorporated into the recruitment of professors back in 1997. The system worked on the principle that the first six posts would be for the general categories with the seventh post being reserved for an SC. The same cycle would repeat in case of the 14th position for an ST. After the reservation category was expanded to accommodate the OBCs, the previous 13 point roster was edited to accommodate every fourth position to an OBC.
Calculations show that after completing an entire cycle, the percentage of positions secured by the reserved categories are nowhere near the requisite percentage mandated by the Indian Constitution. Calculations show that after completing a full cycle, the posts or reserved categories amount to a mere 35.7%, far from the constitutionally assured 49.5%. This problem is further aggravated if the department is smaller than 14 increasing the gulf between the mandated percentage, and actualized percentage. This roster system was made by dividing 100 by the percentage of reservations allotted to a particular group. In the case of a member from the SC community, it was ascertained that the individual would be granted the seventh position (based on 100/15 which yields to 6.7 or 7). Similarly, in case a representative of the OBC, 100/27 results in 3.7 or the fourth seat, leading to every fourth seat being reserved for an OBC.
A chunk of this problem could have been averted if the total number of seats constitutionally required to be reserved were first separated, and then distributed among the reserved categories. The distribution of the reserved seats could then be done according to the minority representation mandated, i.e., allot the OBC 27% of the reserved seats, 15% to SCs, and 7.5% to STs. This could be a possible way of averting the problem in a 13 point roster and even guarantee the constitutionally mandated 49.5% quota of reserved seats.
The policy of treating departments as a unit has overarching problems. Apart from the fact that proper representation cannot be maintained, situations may arise where no representation from the reserved categories takes place. In cases of departments like Environmental Science and that of Sanskrit, the size of the departments are very small and may have only three to five posts. Mathematically speaking, 50% of 3 is 1.5. The institution is in a tight spot here. If the college or university allots two posts to the reserved categories, the reservation is not valid because the Supreme Court of India has categorically stated that the caste-based reservation system cannot be mandated to be over 50%. On the other hand, allotting only one seat for reservation violates the stipulated quantum. In practice, all three seats are filled by general categories, and the reservation does not take place.
History of denial of reservation
The denial of reservation or the staunch protest against the idea has been made known to the judiciary multiple times. Finally, when the Allahabad High Court, in the case Vivekanand Tiwari and Anr v. Union of India and Ors, did ask the Union Grants Commission to reveal the reservation data, it was found that the top universities of the country had been evading the reservation policy. The central institutions have delayed the implementation of the reservation policies by around half a century. Once it did implement them, the 13 point roster system has been often criticised for its lacunas, and inconsistencies in upholding the requisite number of seats for the reserved categories. Treating a single department unit raises the chance of establishing a monopoly. The Karnataka High Court in the case of Dr. Rajkumar and Others vs. Gulbarga University and Others, the court held that if the unit being considered becomes too small, then the guarantee of representing equal opportunity as mandated by the Indian Constitution is rendered meaningless and illusory. The fear has been upheld with the alarming rapidity with which the Central University of Rajasthan reached the ultimate stage of recruitment with very little reservation of posts. Even the Tata Institute of Social Sciences, one of the few organisations that are committed to the fight against social injustice, has no reservation of posts in the advanced positions.
Limiting the unit to a very small not only limits the reservation chances but also depletes the chances of the reservation happening at higher posts. A more intricate analysis finds that even though posts are reserved, the positions are mostly limited only up to the post of Assistant Professors. The subsequent legislation in 2019 titled Central Education Institutions (Reservation in the Teachers’ Cadre) Act, 2019 further aggravates this problem. Under this act, the provisions stated in Section 3 defines the university as a unit for recruiting teachers and professors only at central universities. The scope of the ‘central universities’ provides a chance to 409 state universities, and 349 state private universities to not follow the unit reservation norms.
Another lacuna in the aforementioned act is embedded within the provisions of Section 4(1)(a) of the Act. The provisions state that institutions which have been considered to be institutes of excellence shall not have to conform to the rules of the reservation during the recruitment of their faculty. The provisions of this Section are also violative of Article 14 of the Indian Constitution. The provision of the new Act does not pass the twin test of intelligent differentiation.
Primarily, education is a continued effort, and an equal right of every single individual of this country. Segregating the institutions defeats the purpose of imparting quality education at all levels. Secondly, the segregation in itself is discriminatory in nature. Thirdly, candidates can be meritorious in spite of their coming from backward sections of the society. It is hard to guarantee that such candidates won’t be barred based solely on their coming from reserved categories.
The second test of the twin test or intelligent differentiation fails in this regard. The provision of ranking an institute as one of the institutes of excellence bases the argument solely on merit. The logic of merit fails in cases of private colleges. It is a known fact that private colleges keep a low cutoff for admission even in cases of professional courses such as law, engineering, and medical studies. It is known that training alone can make one skillful no matter the institution, which however fails to justify the merit category in this regard.
Further, the provision of the said Act is a direct violation of the provisions enshrined in the Constitution of India under Article 16(2). The referred article prohibits any discrimination based on caste, creed, sex.
In an attempt to study the effects of the legislation, an experiment was conducted to ascertain the damage caused. In a report sent by Banaras Hindu University to the Ministry of Human Resources, it was outlined that if the university proceeded to follow the new formula, the posts reserved for the minority section of Scheduled Castes would be halved. The reduction would be steeper for the Scheduled Tribes with a decline of 80%, and a 30% decline for the OBCs. According to the data gathered by the Ministry of Social Justice, and Empowerment, out of the 706 vacancies that had been advertised by 11 central universities post the order of March 2018, none of those positions was reserved for STs. For the SCs, a reservation of 2.5% was noticed.
The reservation system was introduced for the upliftment of the marginalised categories. However, proper representation of these minority categories at every walk of life remains a challenge even after 73 years of our independence. While the situation has greatly improved from what it used to be, there is still a significant distance to be covered by the Indian polity to ensure that the harmonious representation of the minority is conserved.
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