History of Reservation System in India
The roots of reservation in India recede to times immemorial when the Hindu Society was divided into four varnas. These varnas get the recognition from Rig Veda. On the facet, it will appear that the Rig Veda sanctions the Hierarchical system but if we analyze the relevant verse which is as follows. The conclusion that can be drawn is that these words had an allusive meaning and no hierarchy was suggested as the words simply meant that Purusha (GOD) is the perpetual source of creation and the above-stated words simply meant that everything is a part of him. The sacred texts of Hindus related all the Varnas to the ‘guna’( the character /virtues of a person) but we molded its meaning to our own whims and fancies. Thus, it resulted in the present day rigid class-based discrimination.
The whole concept of purity of the first three classes( Brahmins/Kshatriyas/Vaishyas) versus the profanity of the Shudras/Untouchables leads to a wide-scale class prejudice. Thus, the class-based discrimination is an archaic practice but if we delve into the legal genesis of reservation in India, we will find the seeds of it sown in the colonial period.
It was the time when the subcontinent was broadly divided according to two main forms of governance – British India and the 600 princely states. Mysore in south India and Baroda and Kolhapur in western India took considerable interest in the awakening of the minorities. It should not surprise us then that the very first records of implementing reservations policies are from these princely states.
The Trails Of Reservation From Pre To Post Independence Era
After knowing the brief history of reservation in India, now let us understand the trails of reservation from pre to post-independence era. It all began with the Minto- Morley Reforms that granted communal representation to Muslims. This was followed by the introduction of separate electorates by Montague- Chelmsford reforms. All this was accentuated by the introduction of the Communal Award by Ramsay MacDonald on August 16, 1932 which provided for ‘reservation’ of seats for minorities and later Poona Pact was signed which called for “every endeavor” to give the Depressed Classes “fair representation” in the public services “subject to such educational qualifications as may be laid down.”
This soft-lined reservation soon turned into hard-lined reservation system in India after the transfer of power in 1947. The Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar was bestowed with the duty to draft the Indian Constitution. When we analyze the legislative framework of the Indian Constitution with respect to the protection of SC/ ST’s we see that the framers of our Constitution envisaged a two-fold strategy to improvise their living conditions. This two-fold strategy was:
- Affirmative Action
So the term affirmative action itself implies that this kind of strategy was aimed at the positive growth of SC/ST by giving them a preferential right in matters of education and jobs. This was basically done to homogenize the long back ‘depressed classes’ with the conventional society. This strategy has its impressions in the following constitutional provisions:
- Article 46 contains the provisions regarding the interests of the weaker sections of society.
- Article17 (Abolition of Untouchability)
- Article 335 (Claims of Scheduled Castes and Scheduled Tribes to services and posts) – The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. These are the general constitutional provisions creating a base of preferential treatment towards SC/ST and now we shall discuss the exclusive provisions relating to the same.
- Preventive ActionIt includes protective actions in the form of statutes like The Untouchability Practices Act, 1955, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989)
Understanding The Exclusivity Of Article 15 And 16 Of The Indian Constitution
- On a conjoint reading of Clause (1),(2),(3) of Article 15 it can be followed that broadly there shall be no discrimination on grounds of religion, race, caste, sex, and place of birth or any of them but this per se does not prevent the State from making special provisions for children and women.
- Similarly, Article 16 deals with a restricted subject i.e. Equality of Opportunity in matters of public Employment and Clause (4) is an enabling provision which 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. Thus, Article 15 and 16 are twin provisions for the advancement of backward classes.
- To further this advancement, Clause (4) of Article 15 was added by the Constitution (First Amendment) Act, 1951 which was a direct outcome of the decision in the case of State of Madras v. Champakam Dorairajan. In this case, the Madras Government passed a law that enabled reservation of certain seats in educational institutions on the grounds of caste, race, and religion. They claimed this law to be covered and protected under Article 46 of DPSP.
- But the Hon’ble Supreme Court ruled out that “the Directive Principles of State Policy have to conform to and run as subsidiary to the Charter of Fundamental rights.” and declared such law as void.” To counter the after-effects of the decision, Clause (4) was added that enabled the State to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribe. So till now, everything seems easy to understand until the question of determination of socially and an educationally backward class of citizens is raised.
- This issue was discussed at length in the case M.R. Balaji v. the State of Mysore. The Hon’ble Supreme Court held that: “The backwardness under Art. 15(4) must be social and educational. It is not either social or educational, but it is both social and educational.”
- Reservations under Arts. 15 (4) and 16 (4) must be within reasonable limits. Speaking, generally and in a broad way, a special provision should be less than 50%. The actual percentage must depend upon the relevant prevailing circumstances in each case.
Understanding The Nexus Between Article 14, 15 And 16.
Let us understand the connection between Article 14, 15 and 16 through two relevant case analysis.
- In the case, Gazula Dasaratha Rama Rao v. State of A.P., Justice S. Das opined that “Article 14 enshrines the fundamental right of equality before the law or the equal protection of the laws within the territory of India. It is available to all, irrespective of whether the person claiming it is a citizen or not. Article 15 prohibits discrimination on some special grounds-religion, race, caste, sex, place of birth or any of them. It is available to citizens only but is not restricted to any employment or office under the State. Article 16 cl. (1), guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State; and el. (2) prohibits discrimination on certain grounds in respect of any such employment or appointment. It would thus appear that Art. 14 guarantees the general right of equality; Arts. 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Article 15 is more general than Art. 16, the latter being confined to matters relating to employment or appointment to any office under the State.”
- This relationship has been further explained in the case: State of Kerala V. N.M. Thomas. It was held that “Articles 14, 15 and 16 form part of a string of constitutionally guaranteed rights. These rights supplement each other. Article 16 is an incident of guarantee of equality contained in Art. 14.”
The Mandal Commission Case
The cardinal rules of reservation were laid in the case Indra Sawhney v. Union of India, which is popularly known as the Mandal Commission case. This case laid down the general guidelines of the reservation policy in India. The main highlights of the decision were:
- Caste is not the sole criteria for the determination of the backward classes. Neither the Constitution nor the Courts prescribe any specific method for the identification of the backward classes. This identification is to be done by the concerned authority.
- The decision of Balaji v. State of Mysore was overruled and a sub-classification of backward classes was ruled out as permissible and valid.
- Further, it was ruled that the Article 15(4) has a limited scope and is in reference to socially and economically backward classes. Whereas Article 16(4) has a wider ambit and it means and includes SC/ST/backward classes including socially and economically backward classes.
ALL THE PROS OF RESERVATION AFTER THE MANDAL COMMISSION CASE
- There can be a maximum of 50% of reservation in a year.
- Introduced the concept of creamy layer in the backward classes. So creamy layer refers to the privileged section (based on the annual income and social advancement both) that are excluded from prevailing the benefits of reservation.
- There shall be merit-based promotion and no reservation in cases of promotion.
There is no denial of the fact that reservation is a means to social advancement of the historically suppressed classes. But as every coin has two sides, even the reservation policy has its own pitfalls. Reservation is antagonistic to the whole concept of meritocracy. The factors that are considered in the determination of the backward classes are restricted to annual income/caste rather there should be a number of comprehensive factors that should be considered like examination of the policy in past years and the benefits prevailed by classes in these years. The reservation has been a stepping stone for socially and economically backward classes to grow and improve their standards of living but at the same time, it has footprints of sheer discrimination and prejudice to general category people. There is no direct answer to the question that whether it is bad or good but there is no doubt that reservation is a blend of both because it has a stagnating effect for one section of society and a blooming effect for the other.
- Affirmative Action