Author: Dhairya Kumar
Table of Contents:
|
1 Introduction |
|
2 Beginning
of Mandalisation of Politics |
|
3 Conflict
between Judiciary and Politics |
|
4 Induction
of New Criteria for Reservation |
|
5 Contention
of Maratha Reservation |
|
6 Drawbacks
of the Current Criterion |
|
7 Way
Ahead and Conclusion |
|
8 References |
Introduction:
In today’s era reservation still remains a hotly debated topic even in our 75th year of independence. It's been spoken time and again and continues to dominate the parlance in state politics. The Preamble of our constitutions mentions equality as a necessity for the establishment of a democratic regime. The key articles under Right to equality i.e., Articles 14,15, and 16 impliedly empower the state to make provisions for the adequate representation of the socially and educationally backward classes. Again Article 46 directs the state to safeguard the economic and academic interests of the weaker sections specifically SC and ST.
Our constitution provides political reservation to SCs and STs by reserving seats in Lok Sabha under Article 330 and Vidhan Sabha under Article 332 in proportion to their population. However, such a provision doesn't exist for OBCs, which indicates that the principal categories for social action are SCs and STs in step with the constitution.
Beginning of Mandalisation of Politics:
Nearly, after 30 years of implementation of the constitution the Mandal commission was set up in 1979 by the Morarji Desai government under B.P. Mandal. The commission submitted its report in 1980 and recommended Other Backward Classes (OBCs) would get 27 percent reservation in jobs in central government services and public sector units. These were implemented by the government of V.P. Singh which led to a furor in the country. The politicians that occupied the political scene started widening the gulf based on caste. They started the policy of caste appeasement and thus tried to woo their supporters not by development but by appeasing them and giving them the carrot of reservation. The politicians due to political pressure and for securing their vote bank started adding more and more castes within the framework of reservation thus forgetting the constitutional basis of this framework.
Conflict between Judiciary and Politics:
In the case of Indra Sawhney & Others v. Union of India, the Supreme Court held that there will be no reservations in case of promotions but this was undone by parliament by inserting 77th amendment and enacting the provision of Article 16(4A) for giving reservation in promotions.
The Supreme Court again in the case S. Vinod Kumar v. Union of India held that efficiency of administration should not be compromised or relaxed to afford protection of reservation, but again this led to the 82nd amendment, and a clause under Article 335 was inserted to relax the standards for accommodating reservations. Similarly, when the question of consequential seniority concerning reservations came before the court, the constitution was amended 85th time to insert Clause(4A) in Article 16 to add consequential seniority to it. All these events indicated politicians kept merit on the back burner and gave priority to vote bank politics. In the words of Jawaharlal Nehru, “There is a great danger, whether you deal with an individual or group or community, of giving certain props to that community which gives it a false sense of strength which does not belong to it, and when they are removed, suddenly make the community weak.”
Induction of New Criteria for Reservation:
Then came a drastic change with the introduction of the 124th amendment in 2019 which provided for the advancement of the economically weaker sections. This law amended Articles 15 and 16 by inserting clauses by inserting 15(6) and 16(6). This was introduced based on recommendations of S.R. Sinho Commission of 2010. This pro-poor amendment proposed to reserve 10% of the seats for the EWS section in the General Category in jobs and educational institutions. However, this does not apply to minority educational institutions. This law surprised many as it proposed reservations for even the upper castes. Many commentators praised it for being ‘pro-poor’ while others criticized it for marking the end of social justice in the form of caste-based reservations. This amendment was challenged in the Supreme Court on various grounds like:
1. Reservations cannot be based solely on economic criteria, given the Supreme Court’s judgment in Indra Sawhney v. Union of India (1992)
2. The Amendment introduces reservations that exceed the 50% ceiling limit on reservations, established by Indra Sawhney.
Some experts also say in this matter that Parliament is fully within its domain to overcome a judgment through a constitutional amendment, and like Indra Sawhney’s ban on reservations in promotion, the 50% limit upon reservations is a purely judicial invention with no basis in the text of the Constitution.
Contention of Maratha Reservation:
A case related to the issue of reservation that recently made headlines is the Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra famously known as The Maratha Quota Case. The facts of the case were related to Mandal Commission’s report which gave OBCs a separate quota but did not include the Maratha Shudra Agrarian community and many other Shudra communities. According to the established precedents, the percentage of reservations in India should not cross 50% and the inclusion of Marathas in the existing quotas would have made other beneficiaries unhappy. Therefore, the Socially and Educationally Backward Classes Act, 2018 was passed by Maharashtra Government giving 16% separate quotas to the Maratha Community in State Services and Higher Education. When the legality of the Act was contested, the Bombay High Court upheld its validity. Later, Supreme Court admitted to the High Court’s decision and chose not to stay the Act but referred it to the larger Bench. It held that the Act violated the equality principle under Article 14 and also exceeded the reservation cap under Article 16 without there being an extraordinary circumstance being present. It was also held that the Act was passed without following the requirements of the 102nd Amendment to the Constitution. The Court also noted that Marathas were already a dominant class, and hence it declared the Act as Ultra Vires.
Drawbacks of the Current Criterion:
- There is a lack of reliable data to substantiate the claims with solid numbers. The Caste data with the government is outdated. The Central government told Supreme Court that the data of Socio-economic Caste-Census 2011 is unusable on account of grave mistakes and inaccuracies. The government also expressed its reluctance to collect data on castes other than SC and ST during the upcoming population census in 2022.
- The recent Gujjar-Meena Clashes in Rajasthan Indicated reservation is now no more an Affirmative Action, rather it has become an instrument to show power and is the object to be achieved by the powerful. It showed if your caste is dominating and vociferous in society it will have the privilege to get the reservation.
- To quote the words of the Supreme court: 'Nowhere in the world do castes come up, classes or communities queue up for the sake of gaining backward status. Nowhere else in the world is there competition to assert backwardness and then to claim we are more backward than you.’
Way Ahead and Conclusion:
- The process of sub-categorization of people belonging to different caste groups on the basis of creamy layer criteria should be undertaken by the government as soon as possible. The Justice Rohini Commission was set up under Article 340 by the President for the purpose of sub-categorization of OBCs to ensure equitable representation of all sub-communities and to allow for more egalitarian distribution of resources.
- A mechanism should be derived to identify caste groups that have enjoyed the benefits of reservation for long and have overcome the vicious circle of discrimination and poverty. These groups should be slowly and gradually removed from the list of reserved categories and other caste groups that still face prejudices and poverty should be added to ensure that the benefits of affirmative action trickle down to the lowest rung of society.
The role of affirmative action is very crucial for the equitable development of the nation. The policy is the need of the hour and it needs to be streamlined keeping in view the current contingencies of our society. Search for alternative solutions that could produce better results, better in the sense they benefit backward castes, and yet will be acceptable to others should go on and a balance needs to be struck between equity and equality, on one hand, and individual gain and public accountability, on the other.
References:
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