Reservation Policy and Indian Constitution

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I. Introduction

The spirit of equality pervades the provisions of the Constitution of India, as the main aim of the founders of the Constitution was to create an egalitarian society wherein social, economic and political justice prevailed and equality of status and opportunity are made available to all. However, owing to historical and traditional reasons, certain classes of Indian citizens are under severe social and economic disabilities so that they cannot effectively enjoy either equality of status or of opportunity. Therefore the Constitution accords to these weaker sections of society protective discrimination in various articles, including Article 15(4).

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This clause empowers the state, notwithstanding anything to the contrary in Articles 15(1) and 29(2), to make special reservation for the advancement of any socially and educationally backward classes of citizens or for scheduled castes and scheduled tribes.

Cast based reservation system in India

An ordinary form of long-ago discrimination, inside humankind in India is the carry out of untouchability. Scheduled Castes (SCs) are the main targets of this medieval put into practice a practice which is banned by the Constitution of India (Basu, Durga Das (2008) an untouched human being is measured, contaminated or a lesser human.

Though during the Vedic period a person's 'Varna' (not 'caste') was clear by his/ her socio-economic duties these duties were either of your own accord performed or were assigned by the local superintendent , and 'varna' was originally not clear by one's birth into any exacting family. Nevertheless, over the years Caste has been defined by one's birth.

The Government in recognition to the peripheral status of the marginalized social communities has consistently promulgated various legislations and statutes, which are influenced by two main considerations, namely: a.

to overcome the multiple deprivations of the marginalized social groups inherited from exclusion in the past, and to the extent possible bring them at par with the others; and b. to provide protection against exclusion and discrimination in the present by encouraging their effective participation in the general economic, social and political processes of the country.

Towards these ends, the Government of India had utilized two-fold strategies, which include:
i) anti-discriminatory and protective measures;
ii) development and empowering measures.

The extension of the reservation policy in India to the marginalized social groups is primarily drawn from such considerations and is only applicable to the public domain. As such, the vast private sector, which comprises of a sizable section of the marginalized social groups, remains outside the purview of the reservation policy.

Reservation in India is a form of affirmative action designed to improve the well-being of perceived backward and under-represented communities defined primarily by their 'caste' (quota-system based on 'gender' or 'religion') is a phenomenon that commenced with the coming into force of the Indian Constitution (the Constitution initially provided reservation to Christians, with the proviso that it would automatically reduce gradually with the efflux of time) – however, lately preferential treatment on regional basis has either been non-statutorily introduced in the educational institutes (e.g. eligibility conditions for candidates from outside the State are 5% higher than that for the 'locals', as per local rules prescribed by certain Universities) or is being advocated in both jobs and lowly professions like auto-rickshaw-drivers).

The most important stated aim of the Indian reservation system is to boost the opportunities for improved social and instructive position of the underprivileged communities and, thus, allow them to take their equitable place in the conventional of Indian society. The reservation scheme exists to provide opportunities for the members of the SCs and STs to increase their representation in the State Legislatures, the executive appendage of the Union and States, the labor force, schools, colleges, and other 'public' institutions. (Financial Support", 0ct 2011). The Constitution of India states in Article 15(4): "All citizens shall have equal opportunities of receiving education.

Nothing herein contained shall preclude the State from providing special facilities for educationally backward sections (not "communities") of the population.” [Emphasis and parentheses added. It also states that “The State shall promote with special care the educational and economic interests of the weaker sections of society (in particular, of the scheduled castes and aboriginal tribes), and shall protect them from social ''injustice'' and all forms of exploitation." The Article further states that nothing in Article 15(4) will prevent the nation from helping SCs and STs for their betterment ['betterment' up to the level enjoyed by the average member of other communities. ( Laskar, Mehbubul Hassan 2011).

In 1982, the Constitution specified 15% and 7.5% of vacancies in public sector and government-aided educational institutes as a quota reserved for the SC and ST candidates respectively for a period of five years, after which the quota system would be reviewed. This period was routinely extended by the succeeding governments. The Supreme Court of India ruled that reservations cannot exceed 50% (which it judged would violate equal access guaranteed by the Constitution) and put a cap on reservations. However, there are state laws that exceed this 50% limit and these are under litigation in the Supreme Court. For example, the caste-based reservation stands at 69% and the same is applicable to about 87% of the population in the State of Tamil Nadu. In 1990, Prime Minister V. P. Singh announced that 27% of government positions would be set aside for OBC's in addition to the 22.5% already set aside for the SCs and STs.(The Struggle for Equality in India 2002).

In the Indra Sawhney’ case, hon’ble Supreme Court also held that reservation in promotion is unconstitutional but permitted the reservation,for Scheduled Castes and Scheduled Tribes to continue for a period offive years(From 16.11.92). Consequent to this, the Constitution was amended by the Constitution (Seventy-seventh Amendment) Act, 1995 and Article 16(4-A) was incorporated. This Article enables the State to provide for reservation, in matters of promotion, in favour of the Scheduled Castes and Scheduled Tribes. The fact that the words “Backward class” used in Article 16(4) have been instituted in Article 16(4-A) by the words “SCs & STs”, itself precludes consideration of making reservation in promotion in favour of any other category of citizens.

II. Constitutional Provisions
The main objective of the Indian reservation system is to increase the opportunities for enhanced social and educational status (in the sense better than the previous -- until it becomes equal to that enjoyed by an average member of other communities) of the underprivileged communities and, thus, enable them to take their rightful place in the mainstream of Indian society. The reservation system exists to provide opportunities for the members of the SCs and STs to increase their representation in the state Legislative, the Executive Organ of the Union (Centre) and States, the labour force, schools, colleges, and other 'public' institutions.

The exact necessities for the reservation in services in favour of the members of the SC/STs have been made in the Constitution of India. They are as follows: Article 15(4) and 16(4) of the Constitution enabled both the state and Central Governments to reserve seats in public services for the members of the SC and ST, thereby, enshrining impartiality of opportunity in matters of civic service.

Article 15(4) states that: “Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class or citizens, which, in the opinion of the State, is not adequately represented in the services under the State.”

Article 16(4 A) states that: “Nothing in this article shall prevent the State from making any provisions for reservation in the matter of promotion to any class or classes of posts in the services under the State in favour of SCs and STs which in the opinion of the State are not adequately represented under the State”(Constitutional 77th Amendment, - Act, 1995).

Article 16 (4 B) states that: “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).

The Constitution prohibits discrimination (Article 15) of any citizen on grounds of religion, race, caste, etc.; untouchability (Article 17); and forced labour (Article 23). It provides for specific representation through reservation of seats for the SCs and the STs in the Parliament (Article 330) and in the State Legislative Assemblies (Article 332), as well as, in Government and public sector jobs, in both the federal and state Governments (Articles 16(4), 330(4) and 335). (Sukhadeo Thorat and Chittaranjan Senapati 2006).

III. Impact of reservation policy on employment and education

As may be evident from the particulars in the earlier paragraphs, the strategy of reservation had a helpful effect in conditions of induction of scheduled castes, scheduled tribes and other backward classes into public sector employment and in educational institutions. However, their accessible share in employment and educational institutions still falls short of the target in certain categories of jobs and higher education. The target in the case of Groups D and C are close to the population mark of 15 per cent for scheduled castes and 7.5 % for scheduled tribes but fall short in Groups A and B. As against this, the true position regarding the representation of other backward classes in central services is not available.

However, as stated in para 6.4, in the All India Services and central services for which employment is made through the Union Public Service Commission, representation of other backward classes is very near to their share. With the growth in the share of scheduled castes and scheduled tribes in public services, it had positive multiple effects on the social and economic situation of these two disadvantaged groups. The data provided by the ministry of personnel indicates that in recent years the vacancies reserved for the scheduled castes, scheduled tribes and other backward classes are being filled fully even in the „elite‟ services at the centre.

Reservation did not provide equal opportunities within each group/community to all beneficiaries. Consequently, different castes and tribes within a group/community have not benefited from reservation equally. Almost in all categories of beneficiaries among scheduled castes, scheduled tribes or other backward classes and minorities, there is a growing sense of deprivation amongst different categories, which is leading to internal dissension. For example*, in Punjab, the Valmiki Samaj is asking for a separate quota of reservations on the ground that Ramadasis and Mazbis have cornered the benefits. Likewise, Chamars in Uttar Pradesh and Mahars in Maharashtra are said to have benefited from the reservations more than other castes identified in the schedule from these regions. Similar accusations have been made against the Meena community by other scheduled tribes.

Problems of this kind are manifold in the case of other backward classes, as in each state there are dominant groups, usually with economic and political clout, who reap the benefits of reservations. There are Ezhavas in Kerala, Nadars and Thevars in Tamil Nadu, Vokkalligas and Lingayats in Karnataka, Lodhs and Koeris in Central India, Yadavs and Kurmis in Bihar and Uttar Pradesh and Jats in Rajasthan, which, despite their dominant status, have been clubbed as backward classes eligible for benefits under reservations. For these reasons, reservation has become a contentious issue today, more so when it is applied to other backward classes.

Reservations alone are not enough to mainstream the SCs and the STs to the levels of the other sections of the society. The system of reservations meant to uplift the weaker sections, has in fact, succeeded in the creation of creamy layers within the marginalized social groups to the extent that the percolation of the benefits have been marginal and differentially accessed. The vision of Ambedkar, Phule, Periyar, and Sahuji Maharaj, as initially envisioned under the aegis of the reservation policy and reforms in the structure of governance was to completely negate the deleterious impacts of caste-based discrimination and exclusion.

The idea was to create fissures in the hegemonic hold of the immutable status of the higher castes over public services. Therefore, the historicity of reservations included firstly, the amelioration in the relative position of the lower castes, and two, restructuring of the institutionalized social relationships in the Indian society on democratic lines.

Instead of giving power/authority to less efficient candidate, reservation should provide better opportunity of study to weaker/backward section of the society to compete with unreserved class by way of offering more resources to the weaker class so that they could defeat the Generals.