This article is written by Samia Haider and Shaivy Maheshwari, student of Symbiosis Law School.

Introduction

(INCLUDING THE GENESIS AND EVOLUTION OF RESERVATION)

In the words of Aristotle,

“The worst form of inequality is to make unequal things equal.”

An Egalitarian society, in which all the individuals lead their lives with dignity, without any fear of exploitation or discrimination, is what Dr. B. R. Ambedkar, the Father of the Indian Constitution always strived and aspired for. According to him, discrimination and exploitation are two evils which that lead to social exclusion as well as the marginalization of several afflicted groups in the society^[1]. In India, as a result of the pernicious caste system that has prevailed since times immemorial, a huge section of the population has been subjected to institutionalized discrimination and have been stigmatized for reasons starting from language, caste, religion, gender, region etc.

Reservation is a discipline that dates back to 2000 years^[2] and was transformed post-independence to new contrary stature by the tenacious efforts several leaders including MK Gandhi, B.R. Ambedkar. The Preamble of the Indian Constitution describes the nation as “A Democratic Republic” and provides for Equality before law. For this purpose, it lays down certain “special provisions” for the socially backward castes who have faced a long history of stigmatization and marginalization.

However, the Indian Government had now drifted from its long history of caste based reservation by moving towards a class based reservation. It was the S R Sinho Commission which in 2010 submitted a report on the need for a constitutional amendment for the purpose of giving reservation to the general category poor in education as well as in government jobs. For the purpose of upliftment of the economically weaker section (EWS) of the society, the Government has instituted a 10 per cent reservation by mean of the One hundred and third Constitutional Amendment Act. This paper aims to analyze the effect that this move by the Government would have on the individuals.

Effects and Implications

Articles 15 and 16

The main implication of the EWS reservation is that Articles 15 and 16 of the Constitution now stand amended, empowering the state to provide a maximum of 10 per cent reservation for the economically weaker sections of the society excluding the SCs, STs and the OBS-NCL (non-creamy layer). The recently added clause (6)^[3] of Article 15 gives the state the power to make “special provisions” including “reservation in admissions to educational institutions (including private institutions), apart from excluding the educational institutions for minorities under Article 30 (1). The newly added clause (6)^[4] of Article 16 permits for reservation for the purpose of governmental appointments or state posts.

To avail this EWS reservations, an individual needs to have a gross family income that is less than Rs 8 lakh, if they have agricultural land, it needs to be below 5 acres, and a residential plot below 1000 square foot ( in case of urban areas – below 100 yards in a municipal areas or 200 yards in non-notified municipal areas)^[5] . Presently, reservations accounts for a total of 49.5 per cent in India. However, if the 10 per cent reservation for the EWS is taken into consideration, this would raise to a total of around 59.5%, thereby reducing that number of meritorious admissions.

Does the basic structure stand violated?

After deliberating over a number of previous cases^[6], it was ultimately the case of Keshwananda Bharti^[7] that established the basic structure doctrine as an integral part of the Constitution. Though it has not been precisely mentioned in the constitution, the court held that no amendment to the constitution can change the “basic structure” for it is the soul of the Indian democracy. Since then, a large number of principles have been included in the basic structure- federalism, secularism^[8], democracy, equality, freedom etc^[9].

When it comes to reservation for the EWS, in order to determine whether it would affect the basic structure doctrine, two tests are to be considered. The first is the “Width test”- to determine the boundary of the amending power. For this there are four major issues that are to be dealt with- (i) “Qualitative limitations”, i.e., violation of the 50% ceiling (all reservations taken together) (ii) “Qualitative exclusion”, i.e., excluding the creamy layer (iii) compelling reasons for the reservations (iv) that the reservation does not violate the overall efficiency of the administration. The second test is the “Identity test”- examining whether this reservation would alter the true identity of the Constitution. The courts have to also consider the Equality code in the Constitution. Thus, for the EWS reservation to be approved by the Supreme Court as not being a violation of the “basic structure”, the above tests are to be cleared.

Effect on the 50% Ceiling Limit

The Reservation policy in the process of bringing different sections of society to the same level, should not take away people’s right to equality in the first place. Our constitution makers were conscious of this fact and hence they brought a certain limit to the policy of reservation. This was first clearly defined in the case of M.R. Balaji v. State of Mysore^[10] wherein the court realised that the constitution-makers did assume the fact the reservation policy would not be misused to provide unreasonable, excessive or extravagant reservation^[11]. Breaching the 50% ceiling would hence result in a reverse discrimination process. However, subsequent case of N.M. Thomas^[12]assumed a different view. This was also realized later when the Second Backward Classes Commission popularly known as the Mandal Commission came in picture in the year 1979 wherein it suggested the introduction of reservation for Other Backward Castes category. The court capped it to 27% while realizing the fact that “the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits.

Hence, we see that in the present case the 103^rd Amendment allows a breach of this ceiling which was created in the above case. However, the good intention may be, amending articles 15 and 16 of the constitution would not suffice unless the new amendment is tested by this persuasive precedent.

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Economic VS Social Inequality

In our country, a certain section of people have been particularly denounced to such an extent that their social advancement has historically lagged behind. Hence the communities which had the privilege of being considered genuine at that time, certainly have made a lot of progress both in the social as well as an educational arena. Dr. B.R Ambedkar in his speech clearly acknowledged the fact that there is an absence of socio-economic equality which is rooted in the system of our society. Hence, the Constitution provided reservation of seats in the educational institutions and in public employment to three categories of people -Persons who are socially and educationally backward classes of citizens, scheduled castes and scheduled tribes^[13]. Thus, it is an evident fact that the intention was to enhance these under-represented categories on the basis of their caste.

It is a common criticism that caste based reservation encourages inefficient bureaucracy and promotes sub-nationalism, creating a kind of division among society. But one cannot deny that the purpose why the reservation policy was started to promote social upliftment and not the economic one. It tends to remove the caste characteristic monopoly in every kind of institution. The present amendment solely based on the economic criteria for the purpose of reservation. It, therefore, stands to be tested by the ‘caste-based’ criteria created by the Constitution.

Principles Favouring the Reservation

Social Justice is a principle that has not been specifically defined in the Constitution but is left upon the lawmakers to decide its ambit. It is something that is inclusive in nature and it is something that would not be possible without the inclusion of the economically backward part of the society. The soul of the constitution, i.e., the preamble provides for Justice- social, economic and political. Social justice would not be achieved in the truest sense if the economically weak sections of the society are not able to avail the fruits of development in an equitable manner. Poverty is something that not just denies opportunity in education, employment etc. but also denies access to a sustainable livelihood.

Is it a Reservation just for the Savarnas (The Upper Castes)?

Contrary to the popular view, this reservation is not limited to the upper castes. It is available to the economically weak in all general categories, who were till now not subjected to reservation in another category.

Significance

This reservation is progressive as it could address the problem of income and educational unequally due to financial incapacity among individuals. Apart from the already reserved backward classes, there is a large section of the society that resides in hunger and poverty-stricken conditions. This reservation could also reduce the stigma that has been associated with reservation for it has till now been related to caste.

Challenges

• By considering the fact that the previous judgements of the Supreme Court have minimal standing in today’s scenario, one can agree with the government in breaching the 50% ceiling set by the Supreme Court in the case of Indra Sawhney v. Union of India^[14]. However, in the near future it sets out an open boundary for furthering this kind of reservation. In other words, one cannot say that 59.5% reservation is now the final limit of reservation, this can be further breached if a definite boundary is not created. If this happens, the equality principle over which the reservation policy stands would lose its very basis. Hence either the government should give more pronounced reasoning over introducing this new kind of reservation or the Supreme Court while deciding this fresh case, should limit the reservation by introducing a fresh ceiling over the reservation policy.

• Also, one can only say that economically weaker sections among the general category have not been adequately represented if supported through proper empirical research. The criteria over which the government has decided to provide the reservation cannot be the sole basis to decide that. This means that before passing the new decision, the government should have proved that this kind of section of the society (which qualifies that they are economically weaker under the general category) are not adequately represented until now in the educational institutions that may be aided or unaided and also in the civil services.

• The purpose of reservation is to enhance the representation of the historically or existing socially deprived section of the society. It is a way to give them rights to develop and promote themselves. The sole purpose of reservation was to positively discriminate this section of the society so that by educating and promoting a particular group of people within a community, these people can further help in the development of their community. The effort was done to socially uplift people of different communities and not help them on the basis of their economic conditions. Thus, the present development cannot fulfil the ‘need of representation’ for the purpose of reservation.

• The data provided by NSSO and the IT department shows that approximately 90% of Indian families fall within the EWS limit. Thus, the 8 lakh umbrella is a very one for it would cover nearly all the population that is not already covered under the lieu of reservation.

Conclusion

Hence, by taking into account all the above implications, one can conclude that while the intention of the government in introducing the policy was to uplift the economically weak, the amendment still stands to be tested on the basis of various constitutional and judicial grounds. Reservation was started in the past as a temporary provision for the purpose of reducing discrimination. However, whether this provision is actually “temporary” is something that is debatable. The Supreme Court may, while deciding on this amendment quash it on accounts of being violative of the basic structure doctrine or it may uphold it on the grounds on social justice.

Making reforms in the reservation system is the need of the hour. These can be- Restricting its usage to once in a lifetime, providing quality education starting from the elementary level etc. It cannot be denied that unequals are not to be treated equally, but whether reservation is the only solution is a blooming question that still prevails.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

Endnotes

^[1]Sreekanth Yagnamurthy, Reservation for Economically Weaker Section Children in Unaided-Private Schools, 5 Policy and Practise 1, 3 (2013).

^[2]Kumar, Jyotica Kumar, Policy of reservation: its envisioned perspective, 39 Journal of the Indian Law Institute 330, 332 (1997).

^[3]Art. 15 clause (6), the Constitution of India, “Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in sofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.”

^[4]Art. 16 Clause (6), the Constitution of India “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.”

^[5]K. Pawar, Affirmative Action: Current Reservation Policy And Alternative Model, 12 (1^st ed., 2019).

^[6]Shri Shankari Prasad Singh Deo v. Union Of India, AIR 1952 SC 458.

Sajjan Singh v. State Of Rajasthan, (1965) 1 SCR 933.

Golaknathv. State Of Punjab, (1967) 2 SCR 762.

^[7]Kesavananda Bharti v. State Of Kerela, AIR 1973 SC 1461.

^[8]S. R. Bommai v. Union Of India, AIR 1994 SC 1918.

^[9]S. Deshpande, Caste Inequalities In India Today,  Contemporary India: A Sociological Vie,  98-124 ( 1^st ed., 2003).

^[10]AIR 1963 SC 649.

^[11] M.R. Balaji v. State of Mysore, 1963 AIR 649.

^[12]State Of Kerala &Anrvs N. M. Thomas &Ors, 1976 AIR 490.

^[13]C. Basavaraju, Reservation under the Constitution of India: Issues and Perspectives, 51 Journal of Indian Law and Society 267, 268 (2011). 

^[14]AIR 1993 SC 477.