Reservations in India: Need, Issues and Solutions

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Context: The Supreme Court has recently ruled that the states are not bound to provide reservation in appointments and promotions and that there is no fundamental right to reservation in promotions.

Relevance:
Prelims: Current events of national and international importance.
Mains: GS II- 

  • Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions, and basic structure.
  • Structure, organization, and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.
What is meant by reservation or affirmative action?
  • In simple terms, reservation in India is all about reserving access to seats in the government jobs, educational institutions, and even legislatures to certain sections of the population.
  • Also known as affirmative action, the reservation can also be seen as positive discrimination. Reservation in India is a government policy, backed by the Indian Constitution (by means of various amendments).

What is the historical background?
  • The reservation system in India dates back to the 2nd century B.C. where the upper class enjoyed some added privileges.
  • The idea of a caste-based reservation system was originally conceived by William Hunter and Jyotirao Phule in 1882.
  • The reservation that exists today was introduced in 1933 when British Prime Minister Ramsay Macdonald presented the Communal Award.
  • This made a provision for separate electorates for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans, and the Dalits.
  • The communal award was opposed by Mahatma Gandhi, whereas, B.R.Ambedkar supported it.
  • To address the situation, Poona Pact was signed. According to this, the country would have a single Hindu electorate, with seats reserved for Dalits.
  • In the 1990s, the recommendations of the Mandal Commission were implemented in government jobs.
The purpose of reservation in India
  • The two main aims to provide reservation as per the Consitution of India are:
    • Advancement of Scheduled Castes (SC) and the Scheduled Tribes (ST) OR any socially and educationally backward classes of citizens
      • (Eg: OBC) OR economically weaker sections (EWS), Article 15 (4), Article 15 (5), and Article 15 (6),
    • Adequate representation of any backward class of citizens OR economically weaker sections (EWS) in the services under the State.
      • Eg Article 16 (4) and Article 16 (6)

Constitutional Provision:

 

Actual Text:

  • Article 15
    • 15(1)
      • The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
    • 15(2)
      • No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to:
        • (a) access to shops, public restaurants, hotels, and places of public entertainment; 
        • (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
    • 15(3)
      • Nothing in this article shall prevent the State from making any special provision for women and children.
    • 15(4)
      • 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 the Scheduled Tribes.
    • 15(5)
      • Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far 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.
  • Article 16
    • 16(1)
      • There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
    • 16(2)
      • No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
    • 16(3)
      • Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to any office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.
    • 16(4)
      • Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
    • 16(4A)
      • Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (Constitutional 77th Amendment, Act, 1995).
    • 16(4B)
      • Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent. reservation on total number of vacancies of that year. (Constitutional 81st Amendment, Act, 2000).
    • 16(5)
      • Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
  • *** “Nothing in This article Shall ” Implicitly makes the provision of reservation a sole discretion of the state and It is not mandatory for the state to provide reservation every time, It also depends upon the need of the society –According to the recent Supreme court judgment.

Meaning:

  • Article 15 of the Constitution of India provides for the Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
  • Article 15(4) and Article 15(5)
    • Article 15(4) and Article 15(5) are exceptions to Article 15.
    • Article 15(4) says that Article 15 shall not 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 the Scheduled Tribes.
    • Article 15(5) says that Article 15, Article 19(1)(g) or Article 30(1) shall not prevent the state from making any special provisions for socially and educationally backward classes to carry on any business activity and prevent them from getting into good educational institutions.
  • Article 16(4) 
    • Article 16(4) empowers the state to make any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state.
    • By way of the 77th Amendment Act, a new clause (4A) was added to Article 16, empowering the state to make provisions for reservation in matters of promotion to Scheduled Caste/Scheduled Tribe employees if the state feels they are not adequately represented in services.
The extent of Reservation in India
  • In India, reservation is provided in:
    • Government Educational Institutions (like IITs, IIMs, etc) :
      • As per Article 15 – (4), (5), and (6)
    • Government Jobs (like IAS, IPS, etc):
      • As per Article 16 – (4) and (6)
    • Legislatures (Parliament, and State Legislature) :
      • As per Article 334
    • EWS:
      • Before 2019, the reservation was provided mainly on the basis of social and educational backwardness (caste).
      • However, after the 103rd constitutional amendment in 2019, economic backwardness is also considered.

  • Total Percentage:
    • Apart from the reservation quota, additional relaxations like upper-age relaxations, additional attempts, and lower cut-off marks are also provided for various reservation categories.
    • A vacancy reserved for SCs or STs or OBCs cannot be filled by a candidate other than an SC or ST or OBC candidate, as the case may be.
    • About 60% of seats are reserved in India, for various sections like ST, SC, OBC, and EWS – with respect to Government jobs and Higher Education Institutions. 3% of seats are also reserved for differently-abled persons across all categories.
    • This also means that only 40% of seats are available under merit. In the merit seats, not only the general category candidates but all other categories like SC, ST, OBC, and EWS can also compete.

  • SC/ST Reservation
    • The objective of providing reservations to the Scheduled Castes(SCs), Scheduled Tribes (STs) in services is not only to give jobs to some persons belonging to these communities.
    • It basically aims at empowering them and ensuring their participation in the decision-making process of the State.
    • Besides, the state is also keen to end practices such as untouchability.
    • Scheduled Castes (SC) are given 15% quota in jobs/higher educational institutions while Schedule Tribes (ST) are given a 7.5% quota in jobs/higher educational institutions.
    • Reservation is provided not only with respect to direct recruitment but also with respect to promotions for SC/ST category (Article 16(4A).
    • There is no concept of the ‘creamy layer’ with respect to SC/ST reservation. This means that irrespective of the income status or the government posts held by the parents, children of SC/ST parents will get SC/ST Reservation.
  • OBC Reservation
    • Reservation for Other Backwards Classes (OBC) was introduced based on the Mandal Commission Report (1991). The quota for OBCs is 27% in government jobs and higher educational institutions.
    • However, there is a concept of the ‘creamy layer’ with respect to the OBC reservation. Only those from OBC who comes under Non-Creamy Layer would get OBC reservation.
    • The creamy layer concept brings income and social status as parameters to exclude some of the privileged members of OBC from the extent of reservation.
    • This concept also keeps a check to ensure that the benefits of reservation do not get extended to subsequent generations.
Mandal Commission
  • In exercise of the powers conferred by Article 340 of the Constitution, the President appointed a backward class commission in December 1978 under the chairmanship of B. P. Mandal.
  • The commission was formed to determine the criteria for defining India’s “socially and educationally backward classes” and to recommend steps to be taken for the advancement of those classes.
  • The Mandal Commission concluded that India’s population consisted of approximately 52 percent OBCs, therefore 27% of government jobs should be reserved for them.
  • The commission has developed eleven indicators of social, educational, and economic backwardness.
  • Apart from identifying backward classes among Hindus, the Commission has also identified backward classes among non-Hindus (e.g., Muslims, Sikhs, Christians, and Buddhists.
  • It has generated an all-India other backward classes (OBC) list of 3,743 castes and a more underprivileged “depressed backward classes” list of 2,108 castes.
  • EWS Reservation
    • The Central Government of India recently introduced the EWS Reservation.
    • 10% quota is provided for the Economically Weaker Sections (EWS) among General Category candidates in government jobs and educational institutions. This is done by adding clauses for the same in the Indian Constitution (103rd Constitution Amendment Act, 2019).

Judicial Scrutiny of Reservation
  • State of Madras v. Smt.Champakam Dorairajan
    • The State of Madras v. Smt.Champakam Dorairajan (1951) case was the first major verdict of the Supreme Court on the issue of Reservation. The case led to the First Amendment in the constitution.
    • The Supreme Court in the case pointed out that while in the case of employment under the State, Article 16(4) provides for reservations in favor of backward class of citizens, no such provision was made in Article 15.
    • Pursuant to the Supreme Court’s order in the case, the Parliament amended Article 15 by inserting Clause (4).
  • Indra Sawhney v. Union of India (1992)
    • In Indra Sawhney v. Union of India (1992) case the court examined the scope and extent of Article 16(4).
    • The Supreme Court while upholding the 27 percent quota for backward classes, struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.
    • Supreme Court in the same case also upheld the principle that the combined reservation beneficiaries should not exceed 50 percent of India’s population.
    • The concept of ‘creamy layer’ also gained currency through this judgment and provision that reservations for backward classes should be confined to initial appointments only and not extend to promotions.
    • The Court has said that the creamy layer of OBCs should be excluded from the list of beneficiaries of reservation.
    • The Parliament responded by enacting the 77th Constitutional Amendment Act which introduced Article 16(4A).
      • The article confers power on the state to reserve seats in favor of SC and ST in promotions in Public Services if the communities are not adequately represented in public employment.
  • M. Nagaraj v. Union Of India 2006:
    • The Supreme Court in M. Nagaraj v. Union Of India 2006 case while upholding the constitutional validity of Art 16(4A) held that any such reservation policy in order to be constitutionally valid shall satisfy the following three constitutional requirements:
    • The SC and ST communities should be socially and educationally backward.
    • The SC and ST communities are not adequately represented in public employment.
    • Such a reservation policy shall not affect the overall efficiency of the administration.
  • Jarnail Singh vs Lachhmi Narain Gupta:
    • In Jarnail Singh vs Lachhmi Narain Gupta case of 2018, Supreme Court holds that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes.
    • The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in promotion to SC/ST individuals who belong to the creamy layer of their community.
  • In May 2019
    • The Supreme Court upheld the Karnataka law that allows reservations in promotions for SCs and STs with consequential seniority.
  • Sc Judgement 2020:Not bound to provide reservation
    • Ruling:
      • The Supreme Court has recently ruled that the states are not bound to provide reservation in appointments and promotions and that there is no fundamental right to reservation in promotions.
    • Discretion of state:
      • Article 16 (4) and 16 (4A) of the Constitution are in the nature of enabling provisions, vesting a discretion on the state government to consider providing reservation, if the circumstances so warrant.
      • The state government cannot be directed to provide reservations for an appointment in public posts.
      • Similarly, the state is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions.
      • Articles 16 (4) and 16 (4-A) of the Constitution did not confer individuals with a fundamental right to claim reservations in promotion.
      • However, if a State wishes to exercise its discretion and make a reservation in promotions, it has to first collect quantifiable data showing the inadequacy of representation of a class or community in public services.
    • Subject to Judicial Review
      • If the decision of the state government to provide SC/ST reservation in promotion to a particular public post is challenged, it would have to place the data and prove before the court that reservation was necessary and does not affect the efficiency of administration.
    • This Judgement clearly indicates in future the government may decrease the quota of 50% reservation from the jobs and promotion according to social needs and development.

What are the arguments in favour of reservation?
  • Historical injustice:
    • Caste-based reservation is a necessity in India because of historical negligence and injustice caused to those backward communities.
  • Level Playing field:
    • Reservation provides a level playing field as it is difficult for the backward sections who were historically deprived of education, skills and economic mobility to suddenly start competing with those who had access to those means for centuries.
  • Meritocracy Vs Equality:
    • Meritocracy is important, however, it will have no meaning without equality. The caste-based reservation also minimized the gap between upper and lower castes to a great extent.
  • Administration quality:
    • A study revealed that reservations have not affected the efficiency of administration, but enhanced quality. The best example is the Indian Railways in which the SC/ST employees comprise more in number, and the results have been better.

What are the arguments against reservation?
  • Irrelevant :
    • The majority of lower castes have stepped up the social ladder and are now on an equal status compared to the general population.
    • Hence, there is no need for reservation anymore.
  • Short Term Solutions:
    • Reservation only provides a limited and short-term solution to the historical injustice issues.
    • Reservation is obviously a tool to address social and educational backwardness, however, it does not have solutions for all social and economic ailments. There are much better and innovative ways to solve those issues. However, reservation prevents the leadership to come up with viable solutions.
  • Social Exclusion:
    • As the reservation grows larger, it becomes a mechanism of exclusion rather than inclusion. Because, nowadays, the previously advantaged communities have becoming disadvantaged to a large extent due to the reservation conundrum. Many upper castes are still plagued by poverty and illiteracy. Why equality and justice don’t work for them?
  • Economic Growth:
    • Reservation brings down the economic growth rate of the country as it reduces the efficiency of its labor.
    • Reservation agitations may cause social unrest as it was at the time of the Mandal Commission (1990).
What are the concerns/challenges in the reservation system?
  • Castes that should be actually benefitted are not being benefitted, instead, others are reaping the benefits of the reservation system.
  • The reservation system has just become an instrument for politicians to gain vote banks.
  • Agitation for reservation resulted in several deaths, affected transport and the loss of many working days in schools and workplaces. Example- Jat agitation in Haryana.
  • One community after another will start demanding reservations due to the success of others. Many of these communities are politically and economically sound and hence placing the whole community in the reservation system is unethical.
Reasons Behind Increasing Demands of Reservation
  • Reservation is increasingly seen as a remedy for the adverse effects of ill-thought-out development policies.
  • In developed states like Haryana, Gujarat, and Maharashtra, in spite of their economies being relatively better, three things have been worrying about the people:
    • Acute agrarian distress,
    • Stagnation in employment growth and
    • Distortions in the development trajectory.
  • In this backdrop, for governments, it is easier to talk of reservation than to make a course correction.
  • Increasing reservation demands among upper castes also arising from the fear of losing privilege and the inability to cope with change
  • Upper castes have begun to feel disadvantaged especially in the context of government jobs as they don’t get similar advantages like backward classes.
Way Forward
  • Filtering out:
    • The reservation benefits should flow to the vast majority of underprivileged children from deprived castes; not to a few privileged children with a caste tag.
    • High ranks officials families, high-income professionals and others above a certain income should not get the reservation benefits, especially in government jobs.
    • Fair and practical ways to help needy person from each community through reservation is possible and necessary.
    • The process of reservation should filter the truly economically deprived individuals and bring them all to justice
  • Change in education:
    • Revolutionary changes in the education system at the grass-roots level is the need of the hour.
    • There is also a need for awareness generation because while the unreserved segments, keep on opposing the provision, the neediest sections from within the reserved segments are hardly aware of how to get benefited from the provision or even whether there are such provisions exists.
    • Meritocracy should not be polluted by injecting relaxation of entry barriers, rather than it should be encouraged by offering financial aid to the underprivileged.
  • Reduce Society Conflict:
    • Reservation is fair, as far as it provides appropriate positive discrimination for the benefit of the downtrodden and economically backward sections of the society.
    • But when it tends to harm the society and ensures privileges to some at the cost of others for narrow political ends, it should be done away with, as soon as possible.
    • The communities excluded from reservations harbor animosity and prejudice against the castes included in the reservation category.
    • When more people aspire for backwardness rather than of forwardness, the country itself stagnates.
    • A strong political will is indispensable to find an equilibrium between justice to the backward, equity for the forwards and efficiency for the entire system.
Conclusion:
  • In recent times reservations are debated as the opposite of development and equality.
  • We don’t require reservations in the current scenario based only on castes or religion but to actually provide support to those who have fewer resources, and merit should be provided equal and due importance in admission procedures as well employment opportunities.
  • This way we would be successful in eliminating caste discrimination and unite the economically rich together in supporting the economically poor, regardless of their castes.
  • As Justice Ravindran in Ashok Kumar Thakur vs Union of India case rightly said, “when more people aspire for backwardness rather than of forwardness, the country itself stagnates”.



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