In this article. Shivkrit rai discusses Road ahead for Reservation: A Survey of Reforms.

INTRODUCTION

The Constitution of India was made by the authority derived from the people. Its inception marked the accessibility to the Fundamental Rights, provided in Part III of the Constitution. While the Fundamental Rights existed as the rights for each and every citizen of the country, there existed some rights which were made to protect only the underprivileged class of the society. This essay would particularly be focusing on the debates revolving reservations, which can be seen as a by-product of the right to equality.

The idea of compensatory discrimination (reservation) got its legal authority after the making of the Indian Constitution. Its purpose; to serve the socially and economically depressed section of the society. The Constitution, in its Part III strives to provide equality to all the citizens. However, it also mentions that those who are placed unequally would be treated differently. Decades of debate and discussion has raised many questions regarding the validity of reservation in contemporary India. The idea of reservation has evolved and changed over these few decades. There has been a shift in the way backwardness was measured, from political grounds to social grounds to current day popular opinion of the economic grounds. In order to analyze this shift, one needs to understand the idea of backwardness and merit and how it changed over the years.

THE ORIGINS AND A HISTORICAL PERSPECTIVE

Reservation designed in any form would result in resentment from the upper caste. The criteria were initially designed to uplift those who are “socially backward” and “depressed classes”. Backwardness was therefore looked at as a “social aspect”. In India reservation was given to these classes as a helping hand. It was to make sure that these classes are not at a disadvantage as compared to the upper castes, who were well educated and wealthy. The need of the hour was to reorder social relationship and close the educational and economic gap between the communities. A fair representation would thus enhance the representative character of the state.[1]

The idea of fair representation should be looked at from a historical perspective. When the sub-continent in the nineteenth century was divided in two main forms of governance there were the British governed areas and the princely states. The princely states were progressive, and promoted education and the learning of English. These states focused on promoting opportunities for the minority and the deprived sections of the society. During the Macaulay era, the introduction of English as the official language became a primary criterion to hold government jobs. This resulted in restricting the government jobs to the English-speaking population. [2]

The upper class and the upper middle class had the access to English learning and thus they reaped the benefit. The masses remained ignorant and backward. This resulted in the widening of the class divide with respect to the government administration jobs. Thus, the initial introduction of reservation was seen in the state of Mysore in 1918. It took place, with respect to government jobs for certain castes and communities, which had little share in the administration. [3]

This idea further evolved on the lines of political representation. The question of reservations was also discussed in the round table conferences and provisions were made in the Communal Award of 1935. This resulted in the forming of the Poona Pact which had provisions for the people belonging from the depressed class to have seats in the general electorate in the provincial legislature. The pact laid down the guidelines that were to be used for electing members from the backward communities, in the form of Electorate College. The objective of this form of reservation was to ensure that, the depressed classes were being duly represented.

POST INDEPENDENCE AND THE MAKING OF THE CONSTITUTION

After the formation of the constitution, the approach towards reservation took a paradigm shift. The backwardness and merit were now based for the purpose of employment and education and not just for political representation. During this time, there was widespread caste and class divide between different communities and groups. Reservation in the public services and educational institution was created with a view to give representation to those members of the societies who were denied opportunities in the past.

Reservation was again questioned. Naturally it antagonized those sections of the society who were privileged. Article 16 was challenged in the case of State of Madras v. Champakam Dorairajan[4]. The Supreme Court held that the communal government order of the Madras government fixing the proportion of students of each community that could be admitted to state educational institutions was ultra vires under Article 29(2) and was not saved by the provisions of Article 16. There was considerable protest in the southern states as the result of which the Constitution was amended for the first time, and Clause 15(4) added: Article 15(4) stated that nothing in this article or in Clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes[5].

Here again the criteria used to measure backwardness and merit was based on grounds that socially depressed classes should be given equal opportunity. Caste was thus taken as the only criteria for measuring backwardness. No universal formula to measure backwardness was thus found. The courts reviewed if proper criteria for measuring backwardness could be determined. The courts for the first time struck down the caste based reservation in the case of M.R. Balaji v. State of Mysore[6]. In this case reservation was challenged on the grounds that the lists of backward classes were prepared only on the basis of caste and that this was unconstitutional. The Supreme Court in this case held that the caste of a group of persons could not be a sole or even a predominant factor, though it could be used as a relevant test for ascertaining whether a particular class was a backward class or not.

The court stated that backwardness should be measured on social and educational grounds. The reason for this, was poverty.  One’s occupation and place of habitation could be the other relevant factors in determining social backwardness. The court invalidated the test of backwardness which was based predominantly if not solely on castes. Furthermore, the criteria of measuring backwardness started becoming more specific. The Supreme Court in the case R.Chitrakela v. State of Mysore sub-classified SEBC’s. It interpreted the M.R.Balaji case differently. It laid down two principles, firstly, SEBC’s should be made based on economic conditions and secondly it should look into the occupation. Here the caste was taken as relevant criteria for ascertaining backwardness, but was not seen as a “sole determining criterion”.

The following years saw the evolution of reservation criteria of the socially and educationally backward classes. It was argued that the reservation that was taken into account on caste basis would violate article 15(1), however, caste would be considered as a group or class of the society and in the Indian context, the whole class was socially and educationally backward. Therefore, section 15(4) allowed the caste based reservation on the grounds that the whole caste has been socially and educationally deprived.

Compensatory discrimination has been contested, on the grounds that those who make use of the reservation policy are the “creamy layer” and are economically, socially and educationally well off. These advance sections are able to use reservation from generation to generation even though they have climbed the social ladder. This has further created a sub group of elites within their communities, making it the “development of the upper end and stagnation of the bottom”[7]. Here it is to be noted that the individual may move up, however the whole caste remains at the same position. The utilitarian application of the greatest benefit of the greatest number is valid here. Only the new climber, as an individual is benefitted and the whole caste remains unaltered. Reservation is provided on the basis of caste and even if the individual is moved up on the educational and social ladder, his social identity as a caste remains the same. Thus, contesting reservations on grounds that a few may exploit it, ignores the majoritarian need of the members of the backward communities.

FROM SOCIALLY BACKWARD TO ECONOMIC CRITERIA

After the implementation of the recommendation of the Mandal Commission report in the 1990, and the decision of the Supreme Court in the case of Indra Sawhney v. Union of India[8], the idea of backward class and merit became clearer and unambiguous. The Supreme Court defined how article 16(4) mentions classes and not castes. A caste could not be taken as backward class of citizens under article 16(4). The class-caste nexus was taken into account. The classification of the caste in a class was made on the basis that it was not properly represented in the services of the state. Educational and economic backwardness was also taken into account. Social backwardness was now seen as an outcome of educational and economic backwardness. Furthermore, this was the first time “economic criteria” were given so much significance.

The implementation of economic criteria got the creamy layer exclusion principle. The Bench in Indra Sawhney v. Union of India stated that if a “few members of the backward class are educationally and economically advanced, they would be disconnected from the backward class group as the connecting thread between the two classes snap, and they would be misfits for the class.” However, this principle was rejected as it was observed that it would be difficult to come up with a reasonable drawing line. The court further stated that economic basis should not be the only criteria and social advancement should be taken into account.

Economic policies were contrary to the legal framework and overlooked certain facts. It was stated that the focus of reservation is on class poverty and not individual poverty and despite individual exception it may be easy to identify social backwardness with response to caste. It was also stated that reason reservations were provided was to give an equal opportunity to participation in the state administration for socially backward classes and putting an economic criterion would be irrelevant.

CONCLUSION

Thus, the economic criteria even though popularly suggested by many authorities was not taken into consideration. The bar on reservation was put on fifty percent. Reservation in the current day context is as relevant as it was fifty years ago. While certain urban areas may not discriminate people on the basis of caste and social class, the practice of class based discrimination is widely practiced in many parts of India. Making economic criteria as a part of reservation policy would be an important policy measure to ensure that those who benefitted from reservation do not exploit it.

A recent case of reservation could be noticed in the Jat community. The Haryana Assembly passed the Haryana Backward Classes Bill, 2016 to provide reservations of Jats and four other communities in education and government job. This was contested by various authorities. The arguments forwarded were, that even though the Jat community may fall under the criteria of socially backward classes, they were “economically well off and landed classes” in Haryana. The Justice K.C. Gupta Commission report was analyzed by the government. The government was satisfied by the report issued by the committee that concluded that the communities in question were “socially and educationally backward” and satisfied the guidelines mentioned in the Indra Sawhney case, which made it imperative for the state to provide with a ten percent reservation in relaxation of the general rule of fifty percent reservation as a maximum limit, mentioned in the case[9]. This issue has been widely debated as the communities in the bill were not economically backward.

The prevention of ‘creamy layer’ from reservation entitlements will ensure a channeling of reservation benefits to the classes/groups who need it. There exists a need to have a periodical examination of the reservation policy for the backward communities. With decades of affirmative action taken by the state, the benefits of reservation for the advancement of the backward communities need to be evaluated repeatedly. Another issue that needs to be addressed is the “duration for the implementation” of the reservations. It cannot be reversed as long as class based discrimination persists in the society. When the representation criteria per class is met and each and every class has sufficient[10] proportion of representation, reservation for those groups could be struck down.

Suggested  Readings.

Reservation benefits to OBCs, STs, and SCs who have migrated to other states

References

[1] Suri, K.C. “CASTE RESERVATIONS IN INDIA: POLICY AND POLITICS.” The Indian Journal of Political Science55, no. 1 (1994): 37-54. http://www.jstor.org/stable/41855679.

[2]Bhagwan Das. “Moments in a History of Reservations.” Economic and Political Weekly 35, no. 43/44 (2000): 3831-834. http://www.jstor.org/stable/4409890.

[3] ibid

[4] AIR 1951 SC 226

[5] Bhagwan Das. “Moments in a History of Reservations.” Economic and Political Weekly 35, no. 43/44 (2000): 3831-834. http://www.jstor.org/stable/4409890.

[6] 1963 AIR 649; See Also: p. 94, Constitutional Law, V.N.Shukla.

[7] Suri, K.C. “CASTE RESERVATIONS IN INDIA: POLICY AND POLITICS.” The Indian Journal of Political Science55, no. 1 (1994): 37-54. http://www.jstor.org/stable/41855679.

[8] Indra Sawhney v. Union of India, AIR 1993 SC 477

[9] Haryana Assembly passes Jat quota Bill, March 29^th 2016, The Hindu.

[10] Suri, K.C. “CASTE RESERVATIONS IN INDIA: POLICY AND POLITICS.” The Indian Journal of Political Science55, no. 1 (1994): 37-54. http://www.jstor.org/stable/41855679.