Reservation in India

May 8, 2021

Syllabus –

Bodies constituted, Policies, Programmes and Schemes for welfare of Scheduled Castes, Scheduled Tribes,
Women, Minorities, Backward classes, Differently-abled persons, and children in India.

Recent Context

A five-judge Constitution Bench of the Supreme Court recently held the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018 as unconstitutional. This Maratha reservation law provides reservation benefits to the Maratha community in admissions and government jobs. However, the implementation of this reservation took the quota limit in the State in excess of 50%. The Supreme Court also held that this law does not qualify for the “exceptional circumstances” mentioned in the Indra Sawhney case.
Earlier the Supreme court mentioned that it may re-examine the 50% reservation cap set by the Mandal case ruling of 1992(Also known as Indra Sawhney case). But during the recent verdict, the court mentioned that there is no need to revisit the 50% reservation cap. The court mentioned that the arbitrary 50% ceiling set by the Mandal case is now constitutionally recognized.

What is the reservation?

Reservation is the process of facilitating people in education, scholarship and jobs etc. that were faced with historical injustice.
Reservation is the form of quota-based affirmative action.
Reservation is governed by constitutional laws, statutory laws, and local rules and regulations.
Reservation system in India constitutes a number of initiatives like reserving access to seats in the legislatures, to government jobs and to enrolment in higher educational institutions.

Why reservation?

The reservation is undertaken to resolve the historic oppression, inequality, and discrimination suffered by those communities and to give them a place.
It is meant to achieve the promise of equality enshrined in the constitution.
The main objective of the reservation system in India is to improve the social and educational status of underprivileged communities and thus improve their lives.

Constitutional provisions related to the reservation

Part XVI of the Indian Constitution deals with
- Reservation for Scheduled Castes (SC) and Scheduled Tribes (ST) in federal and state legislatures.
- The constitutional authority of the President to set up commissions to assess and suggest remedies for the welfare of SC and ST sections.
Article 15(4) and 16(4) of the Constitution – extends benefits of reservation to socially and educationally backward classes

Why reservation demand has been growing in recent times?

Agriculture crisis: Communities like Jats in Haryana, Patels in Gujarat and Kapus in Andhra Pradesh believe that reservations provide a solution to the rural distress faced by them especially the crisis in agriculture.
Unemployment: is also one of the major factors influencing the demand for reservation.
Privilege: The agitation for reservation also arises from the fear of losing privilege and the inability to cope with change.
Salaries and Wages: Wages in the private sector are much lower than in the public sector. Salaries of government jobs are most attractive at the entry-level.
Demands of Upper castes: Previously advantaged castes like Brahmins, Chettiars, and Rajputs have begun to feel severely disadvantaged as they don’t get any quotas even if they are economically disadvantaged. Thus they want to integrate the economically disadvantaged groups among them in the reserved category.

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.

Arguments against reservation

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.
A 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.
As the reservation grows larger, it becomes a mechanism of exclusion rather than of 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?
Reservation brings down the economic growth rate of the country as it reduces the efficiency of its labour.
Reservation agitations may cause social unrest as it was at the time of the Mandal Commission (1990).

Historical background of Judicial interventions on reservation policy

The state of Madras vs Smt.Champakam Dorairajan (1951) case: In this case, the court held that the caste-based reservations violate provisions of Article 15(1). Article 15(1) provides for non-discrimination of the State against citizens based only on religion, race, caste, sex, place of birth, or any of them. This resulted in the First Constitutional Amendment. The Parliament amended Article 15 to include provisions of reservation under Article 15(4).

M R Balaji vs State of Mysore case 1963 and Devadasan v Union of India case 1964: In these cases, the court held that the efficiency of public administration is essential. Further the court asked the government to maintain the reservation to 50%

Indra Sawhney vs Union of India Case 1992: In this, the court held that the reservation should not exceed 50 per cent in total, unless in exceptional circumstances. Further, the Court held to remove the creamy layer among OBCs from the reservation. Apart from that, the Court also held that there should not be reservations in promotions.
But the government enacted the 77th Constitutional Amendment Act(CAA) to provide reservations for SCs and STs in Promotion(Article 16(4A)).

Current Scenario:

What is the Maratha reservation policy?

Maharastra government appointed a nine-member Maharashtra State Backward Class Commission headed by Justice M.G. Gaikwad. The commission recommended reservation for the Marathas in 2018.
In 2018 itself, the Maharashtra government enacted a law. It provides 16 percent reservation to the Maratha community in jobs and admissions. The law termed the Maratha community as a socially and educationally backward class (SEBC). However, the Maratha reservation violated the 50% ceiling mentioned as in the Indra Sawhney case.
The law was challenged in Bombay High Court. The Bombay High Court upheld the constitutional validity of the Act. But the Bombay High Court reduced the Maratha reservation to 12% in education and 13% in employment (Instead of 16%).
However, an appeal was filed in the Supreme Court. In that case, the Supreme Court held that the reservation is unconstitutional.

Current Ruling:

Violation of Fundamental Rights

A separate reservation for the Maratha community violates Articles 14 (right to equality) and 21 (due process of law).
Reservation breaching the 50% limit will create a society based on “caste rule”.
The Maratha reservation of 12% and 13% (in education and jobs) had increased the overall reservation ceiling to 64% and 65%, respectively.
In the Indira Sawhney judgment1992, SC had categorically said 50% shall be the rule, only in certain exceptional and extraordinary situations for bringing far-flung and remote areas’ population into mainstream said 50% rule can be relaxed.

No Further Benefits:

Appointments made under the Maratha quotafollowing the Bombay High Court judgment endorsing the State law would hold, but they would get no further benefits.

Deprived States of the Power to Identify SEBCs:

There will only be a single list of SEBC with respect to each State and Union Territory notified by the Presidentof India, and that States can only make recommendations for inclusion or exclusion, with any subsequent change to be made only by Parliament.
The Bench unanimously upheld the constitutional validityof the 102nd Constitution Amendment but differed on the question whether it affected the power of states to identify SEBCs.

Direction to NCBC:

Asked the National Commission for Backward Classes (NCBC)to expedite the recommendation of SEBCs so that the President can publish the notification containing the list of SEBCs in relation to States and Union Territories expeditiously.

Implication of Maratha Reservation Judgement

The implication of the 102nd Constitutional Amendment Act: As the judgment upheld the constitutional validity of the 102nd Amendment Act, the President alone has the power to notify backward classes from now on. Apart from that, the Central List will now be the “only list” for the SEBC. This means that the Centre alone is empowered to identify SEBC from now on.
The question of constitutional Validity of the 103^rd Amendment: This amendment provides for 10% reservation for the EWS in government jobs and educational institutions from the unreserved category. The Maratha reservation judgment mentioned 50% as the cap for reservation. But after the enactment of the 103rd Amendment Act, the total reservation now stands at 59.5 per cent. This is a clear violation of the Indra Sawhney judgement.
The constitutional validity of State reservation laws-The judgement mentions that the States can only make suggestions to the President or the statutory commissions. But several states have enacted various local reservation laws. Their constitutional validity was in question after the Maratha reservation judgement. States having such laws include,

- The Tamil Nadu Backward Classes, SCs and STs Act, 1993: By this Act, the Tamil Nadu government provided 69 percent of reservations in educational institutions and jobs in the state government. The State further got the ascent of President and placed this law in Schedule IX of the Constitution.
- As the Law is placed in the Ninth Schedule, the law could not be challenged in court for the violation of fundamental rights. However, the Court in the I R Coelho v State of Tamil Nadu case held that the Laws in Ninth Schedule can be challenged for the violation of the basic structure of the Constitution. The Supreme court is yet to decide the case of Tamil Nadu reservation law.
- Haryana and Chhattisgarh have also passed laws providing reservations in excess of the 50 percent reservation mark. These laws also challenged in the Supreme Court.
- Apart from these legislations, there are many protests from various parts of India demanding special reservations above the 50 percent limit. Few examples are,
  - Patels in Gujarat,
  - Jats in Haryana,
  - Kapus in Andhra Pradesh

Solutions

As mentioned by the judgment itself the National Backward Classes Commission must publish a fresh list of SEBCs, both for states and the central list. Till the publication, the existing lists operating in all states and union territories can continue.
The government has to subclassify the Backward Classes like in Tamil Nadu, Andhra Pradesh, West Bengal etc. This will provide the benefit to intended beneficiaries. Since the government has already appointed Justice G Rohini Panel on Sub-categorisation of OBCs. The Panel has to fast pace the sub-classification process.
The government has to remove the well-off sections from the reservation policy. The government can achieve this by moving away from reservation based on a citizen’s conditions rather than community-based reservations

Conclusion:

In conclusion, the government has to understand that the reservation policy is a temporary measure in the direction of social inclusion. The government can achieve social inclusion by better education policies, enhancing the skill development of backward communities, not by providing more reservations. So, providing more and more reservation gradually is itself not a permanent solution.

Dialing Mains……..

Question 1– Reservation in India, rather than an affirmative action, has become a tool for vote bank politics and an entry into election manifesto. Comment.

Question 2– Highlighting the observation of Supreme Court in Maratha Reservation verdict, outline how the reservation policy can be better targeted to truly cater to the deserving citizens/sections of society.