RESERVATION POLICY OF INDIA: IS IT AN AFFIRMATIVE ACTION? BY - ISHITA SINGH
RESERVATION
POLICY OF INDIA: IS IT AN AFFIRMATIVE ACTION?
AUTHORED BY - ISHITA SINGH[1]
Introduction
Reservation Policy refers to
reserving a certain number of seats for Schedule Caste (SCs), Schedule Tribes
(STs), Other Backward Classes (OBCs), Economically Weaker Sections, or Disabled
people in various fields such as Educational Institutions, Government Jobs,
Legislature, and Others (scholarships, land allotments, etc.) This Reservation
is a kind of Favourable and Positive discrimination because these sections have
faced injustice for a long time due to their caste.[2]
This article is about the study of historical
evolution, constitutional provisions, current reservation policy and misuse of
power.
Historical
Evolution
Pre-Independence
In the early 19th century,
the caste system divides Hindus into four categories i.e. Brahmins, Kshatriyas,
Vaishyas, and Shudras. In this caste system, Brahmins were
considered to be on top and they used to work as teachers and priests. Kshatriyas
were considered second and they were the rulers and warriors of the kingdom. Vaishyas
were in third place and they were involved in trading and farming. The Shudras
were considered the lowest and they used to do inferior work like cleaning and
sweeping. The caste system leads to discrimination and social backwardness of
the people and that’s the main cause behind the evolution of reservation policy
in India.[3]
The idea of caste-based reservation
was originally developed by William Hunter and Jyotirao Phule in 1882, but the
reservation system that exists today was introduced in 1933 through the ‘Communal
Award’ by British Prime Minister Ramsay Macdonald. The Communal Award made
provisions for separate electorates for Europeans, Anglo-Indians, Indian
Christians, Muslims, Sikhs, and Dalits. Later, the Poona Pact agreement was
signed between Mahatma Gandhi and Dr. B.R. Ambedkar and it was decided that
there would be a single electorate with certain reservations in it.[4]
In 1942, 8.5 percent reservation was
recommended for SC in civil services by the Viceroy’s executive council.
Post-Independence
After Independence from British rule,
when our country was divided into India and Pakistan, most of the Muslims
migrated to Pakistan and Hinduism became the most prominent religion in India.
There was a lot of social discrimination based on the caste system at that
time, so the provisions of reservation were introduced in the Constitution of
India for the socially backward classes.[5]
In 1950, the Constitution of India provided
reservations to SCs and STs, and by 1991, OBC was also included by the
recommendation of the Mandal Commission, which recommends 27 percent government
job reservation for OBCs.
In 1992, the hon’ble Supreme Court of
India laid down several landmark propositions such as a 50 percent threshold in
reservations and struck down the 10 percent government job reservation for an
economically backward class given by the Narasimha Rao government.
The recent amendment of Article 15 of
the Constitution of India in 2019, allows the government to make special
provisions for the advancement of economically weaker sections and allow
reservations in educational institutions.[6]
Constitutional
Provisions
There are certain provisions in the
constitution of India for the reservation of the members of SC/ST and socially
or economically backward classes and both the central and state government can
reserve seats in public services for these members.
Article 15(4) states that the state can make
special provisions for the advancement of socially and educationally backward
classes or for SCs and STs. In M.R. Balaji vs State of Mysore (1962)[7], The
Mysore Government reserves the seats in medical and engineering college for
backward and more backward classes, schedule caste and scheduled tribes under article
15(4).
Article 15(5) states that the state can make
special provisions for the advancement of socially and educationally backward
classes or for SCs and STs related to their admission in educational
institutes, whether they are private institutes or aided or unaided by the
state, other than minority educational institutes. Kumari K.S. Jayasree
& Anr. vs State of Kerala & Anr. (1976)[8],
in this case Hon’ble High Court of Kerala held that there are two factors for the
determination of backwardness, caste and poverty and focuses on income criteria
but the Hon’ble Supreme Court of India finding the income test
unconstitutional.
Article 16(4) states that state can make provisions
for reservation of appointments or posts for backward classes. Indira
Sawhey vs UOI (1993)[9], This
case is also known as mandal commission case and in this case Hon’ble Supreme Court
held that the Union government may reserve 27% of government jobs for backward
classes and exclude the creamy layer from this reservation policy under article
16(4).
The reservation policies shall only
apply on the initial appointments not for further promotions and also the seats
reserved should not exceed 50%.
Article 16(4A) states that the state can make
provisions for reservation in the matter of promotion to any class or classes
of posts in the service under the state for the SCs and STs.
Article 16(4B) states that Unfilled Reserved
Vacancies from a year meant for appointment under clause (4) or (4A) of Article
16 can be considered as a separate class of vacancies to be filled in
subsequent years & the Backlog vacancies won't be added to regular Reserved
Vacancies of the current year for determining 50% ceiling on reservation. In
M. Nagaraj vs Union of India (2006)[10], the
Supreme court held that the reservation provision does not exceed the
reservation limit of 50% and exclude creamy layer also.
Insertion of Article 16 (4A) and
article 16 (4B) by the amendments held valid because they do not change the
structure of article 16 (4) and these provisions are enabling in nature.
The State is not bound to make
provisions for promotion. however, the State makes such laws for the
advancement of SCs and STs.
Article 46 states that the state shall protect
SCs and STs from social injustice and exploitation and promote their
educational and economic interests. In State of Madras vs Smt.
Champakaran Dorairajan (1951)[11],
Madras reserved seats for the weaker section for admission into Government
medical and engineering colleges and it was challenged as unconstitutional as
it violates the fundamental right that guarantees equality and the Apex court
also held that the Directive Principle of state policy cannot overrule the fundamental
rights.
Article 243D states that the reservation of
seats in panchayats for SCs, STs and women and one-third of the seats shall be
reserved for women who belongs to SCs or STs.
This provision also provide
reservation to SCs, STs and women for offices of the chairperson in the
panchayat at the village and one third of the offices of chairpersons in panchayat
shall be reserved for women.
Article 330 states that Reservation of seats in Lok
Sabha for SCs and STs and the number of seats reserved in any state union or
territory shall be proportional to their population in that state union or
territory, as compared to the total population.
The number of seats reserve for ST in
the autonomous district of Assam shall not be less than the proportion of the
schedule tribe population as compared to the total population of that state.
Article 332 states that Reservation of seats in
legislative assembly of every state for SCs and STs and it shall be
proportionate to the total number of seats in the assembly as the population. Baijnath
vs Govt. of Madhya Pradesh (1979)[12], In
this case court held that section 29 of The Municipality act 1961 says that the
reservation for SC and ST should be fixed in accordance with article 330 and
332 of Constitution of India. In this act there was a specific provision for
reservation of seats for SC and ST in accordance with article 330 and 332 of
the Constitution of India.
The Present
Status of Reservation in India
Once the concept of reservation was
evolved, The Indian Parliament routinely extended this with time to time and
introduced reservation for other sections as well.
The Hon’ble Supreme Court of India
held that the reservation cannot exceed 50%, the Central Government reserves
27% seats for higher education and in most of the States reservation is 50% but
in certain states such as rajasthan have 68% reservation.[13]
The below
table is the comparative data of the reservation given to applicants of
different classes in educational institutions or government jobs:
|
CATEGORY
|
RESERVATION (%)
|
|
Scheduled Caste (SC)
|
15%
|
|
Schedule Tribe (ST)
|
7.5%
|
|
Other Backward Class (OBC)
|
27%
|
|
Economically Weaker Sections (EWS)
|
10%
|
|
Persons with Benchmark Disabilities
|
4%
|
Almost 60% reservation is given to SCs,
STs, OBC and EWS etc. in Government jobs and Educational institutions.[14]
Misuse of
Reservation Policies
The makers of the Constitution had a
pure intention behind including reservation provisions into the constitution
but now reservation is deviating from its primary purpose and people are
misusing this privilege for their benefit like:
India is a country in which most of
the population is showing themselves economically weak by making false documentation
such as caste certificates and taking advantage of government policies.
The other misuse is that the
political parties use reservation policies for vote bank politics and this is
unfortunate that such acts in the name of election are not barred by the
Representation of People Act,1951 and it had become a normal feature of
politics to manipulate the sentiments of a caste or a class on the name of
election by political parties by promising them to aid economically as well as
socially. As a result, the people who are actually in need and economically and
socially backward failed to take benefits from these policies.[15]
Conclusion
In India reservation policy is a long-in-the-tooth
and emerging concept. The primary purpose behind this policy is to uplift the
lower section of society who is socially, economically and educationally
backward so that they get a fair opportunity and through this many people came
forward and take the advantage and it increases the number of people from
backward section in various decision making procedures resulting in equal
representation from different sections of the society but, somewhere it has
deviated from its primary purpose because of the corruption and misuse of power
.
So, the legislation has to amend
certain provisions of law so that the enforceability of such provisions can be
effective in the society.
[1] The author is a student at
Galgotias University, Greater Noida
[2]Reservation in India. (July, 2019). Drishti IAS. https://www.drishtiias.com/to-the-points/Paper2/reservation-in-india.
[3]The Concept, origin and evaluation of
reservation policy in India. (August, 2021). https://www.legalserviceindia.com/legal/article-6526-the-concept-origin-and-evaluation-of-reservation-policy-in-india.html
[4]AnuMeena Care Foundation
(September, 2023) Reservation in
India: historical evolution, constitutional provisions, and ongoing debate.https://www.linkedin.com/pulse/reservation-india-historical-evolution-constitutionalprovisions#:~:text=Historical%20Background%20%3A,British%20Prime%20Minister%20Ramsay%20Macdonald.
[5]The Concept, origin and
evaluation of reservation policy in India (October, 2018). https://www.legalserviceindia.com/legal/article-6526-the-concept-origin-and-evaluation-of-reservation-policy-in-india.html.
[6]History of reservation in India (November, 2019).https://www.goimonitor.com/story/history-reservation-india.
[10] (2006) 8 SCC 212
[11] (1951) SCC 351
[12] (1979) MPLJ 679
[13]Raj, M.S.Y.S. and Gokulraja, M.P., 2015. An Analysis of
Reservation System in India. International
Journal of Research (IJR), ISSN,(2348–6848).
[14]Law
Insider IN (2021) What is the
current structure of Reservation in India?
https://www.lawinsider.in/columns/what-is-the-current-structure-of-reservation-in-india.
[15]Tnn (2021) 'Parties misuse
reservation policy for political gain, AG tells Supreme Court,' The Times of India, 19 March. https://timesofindia.indiatimes.com/india/parties-misuse-reservation-policy-for-political-gain-ag-tells-supreme-court/articleshow/81580143.cms.