lawyers in India

Abolish Reservation Because Merit and Efficiency are in Danger

Written by: Vinay Bhushan Upadhyay - Student Of LL.B Vth Semester, Law School, Banaras Hindu, Univretrsity, Varanasi
NCLT Lawyers in India
Legal Service
  • India -"Hindustan" literally means the land of Hindus. It is a secular nation since 1950. Officially, there is no place for religious, cultural or caste segregation in the society. However, the framers of the Indian Constitution decided to give special benefits to the backward classes and women by forming a reservation policy that was included in the Constitution itself. This paper tries to look at this policy and how it has progressed in the last 60 years, and analyze its effectiveness and implications.

    Reservation is a highly debated topic in India. This system of positive discrimination remains mostly unimplemented in many sectors. Although, it was intended to carry on a democratic revolution in the arenas of education and employment, owing to red tapism, official negligence, and a whole host of other factors, it has not achieved its targeted change. One of the reasons also include the banal idea that the recipients of reservation (which was originally proposed with the idea of amelioration of the depressed classes) are drawn from the "creamy layer" e.g. children of highly educated and well-employed parents belonging to the backward and scheduled castes. We find that another equally important concept used in stopping the effective reach of the reservation policy is the "Merit syndrome", whereby the privileged classes resent and rally on the false premise that reservation policy destroys merit.

    India was a country with highly rigid caste-based hierarchal structure, with ascending order of privileges and descending order of disabilities, which operated for about 3000 years. There was an overwhelming majority in the nation that was still backward – socially, economically, educationally, and politically. These victims of entrenched backwardness comprise the present scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC).

    In the Indian context, reservations were introduced during the last decades of the 19th century at a time when the subcontinent could be broadly divided according to two main forms of governance – British India and the 600 princely states. Some of these states were progressive and eager to modernize through the promotion of education and industry and by maintaining unity among their own people. Mysore in south India and Baroda and Kolhapur in western India took considerable interest in awakening and advancement of the minorities and deprived sections of the society. It should not surprise us then that the very first records of implementing reservations policies are from these princely states.

    Constitutional Provisions:

    One of the framer of the constitution of India was Ambedkar and hence he made certain arrangements for the backward classes to allow them to enjoy a humane lifestyle and for their upliftment. The reservations for the backward classes are of three broad categories: political, educational and employment. For the first, the Constitution provides for reservation of seats in proportion to their numbers for the SCs and the STs in the Lok Sabha (The Lower House) in its Article 330, and in the Vidhan Sabha (The Upper House) in Article 332. These provisions do not exist for the OBCs, which indicate that the principal categories for the affirmative action are the SCs and STs according to the Constitution..

    For the second, an implication exists in the constitutional provision - Article 15(4), which allows the state to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and STs.

    For the third, the constitutional provisions as modified and simplified from time to time are the Article 16(4), Article 16(4A), Article 16(4B), Article 335, and Article 320(4). These articles provide explicitly for reservation in educational institutions for the backward classes and the authority of the state to make any required changes with time,as required.

    Current Situation:
    As of now, the total reservation quota stands at 45% in many states of India and this includes the SCs, STs, and the OBCs. The trend seems to have shifted to reverse discrimination rather than mere affirmative action. Some backward class elites have gained political and/or economic power based on this reservation. However, a majority of the backward classes is not living any differently than before. Their subsistence is meager and rural lifestyles do not provide them with any of the benefits. Thus, a distinct economic class system exists within the backward classes. Since economic status is not a test used, undeserving people gain the advantages and the deserving ones are still without a significant change in their situations.

    Commissions Established for Detection of Backward Classes

    The central government appointed the first backward classes commission headed by Kaka Kalelkar, which submitted its report in 1955. This commission confronted the situation with an excess of bravery: In the absence of reliable facts and figures, the only course open to us was to rely on the statistics available from various Governments and the previous census reports, and to go by the general impressions of Government officers, leaders of public opinion and social workers. In certain cases, the commission had no data at all and was compelled to take a decision on the strength of the name of the community only. On the principle of giving the benefit of doubt. And though the Kalelkar Commission shared prevalent reservations about utilizing caste and community as markers of social distinctions, it was absolutely clear that it would be difficult to avoid caste in the present prevailing conditions. The Kalelkar report was tabled in parliament in 1956 and it was accompanied by a scathing official note from the Government depreciating the use of caste as a category. The Government noted that caste was the greatest hindrance in the way of our progress towards an egalitarian society and warned that the recognition of specified castes as backward may serve to maintain and perpetuate the existing distinctions on the basis of caste. The Government said that the criteria evolved by the Commission, when they were not exclusively dependent on caste, were obviously vague’.

    The Mandal Commission was instituted by the Morarji Desai government in 1978 to consider affirmative policies for backward and disadvantaged castes in order to redress caste discrimination. The report submitted in December, 1980 called for reserving 27% of all services of Public Sector under Central Government and 27% of all admissions to institutions of higher education for OBCs, over and above the existing22.5% reservation for SCs and STs. After nine years from giving report in 1990, the Prime Minister V.P. singh decided to implement the Mandal commission recommendations.

    Reservation and Indian Judiciary:

    A writ petition was filled in the Supreme Court against the implementation of the Mandal Report. The Court in its judgment in the case of Indra Sawhney v. Union of India delivered on the November 16, 1992 upheld reservation for OBC subject to the exclusion socially advanced sections (Creamy Layer) from amongst the OBCs. And reservation of posts and appointment must be within reasonable limits, viz. 50% as the maximum.

    A major difficulty raised by Art. 15(4) is regarding the determination who are ‘socially and educationally backward classes…’ Art.15(4) lays down no criteria to designate backward classes, it leaves the matter to the state to specify backward classes, but the courts can go into the question whether the criteria used by the state for the purpose are relevant or not.

    The question of defining backward classes has been considered by the Supreme Court in a number of cases. On the whole, the protection to one Supreme Court’s approach has been that state resources are limited, group affects the constitutional rights of other citizens to demand equal opportunity, and efficiency and public interest have to be maintained in public services because it is implicit in the very idea of reservation that a less meritorious person is being preferred to a more meritorious person. The court also seeks to guard against the perpetuation of the caste system in India and the inclusion of advance classes within the term backward classes.

    From the several judicial pronouncements concerning the definition of backward classes several propositions emerge

    1. The backwardness envisaged by Art. 15(4) means that a class to be identified as backward should be both socially and educationally backward.
    In M.R. Balaji v. State of Mysore, the court observed: It was realized that in Indian society there were other classes of citizens who were equally or may be somewhat less backward than the SCs and STs and it was thought some special provision ought to be made even for them.

    2. Caste may be a relevant factor to define backwardness, but it cannot be the sole criterion. If classification for social backwardness and were to be based solely on caste, then the caste system would be perpetuated in the Indian society.

    3. Poverty, occupations, place of habitation, all contribute to backwardness and such factors cannot be ignored.

    Backwardness may be defined without any reference to caste. As the Supreme Court has emphasized Art. 15(4) does not speak of castes, but also speaks of classes and that ‘caste’ and class are not synonymous. Therefore, exclusion of caste to ascertain backwardness does not vitiate classification if it satisfies other tests.

    The Supreme court’s recent judgment dated 19.10.2006 in M. Nagraj v. Union of India should have ideally given the government a cause for celebration. The decision upheld the 77th, 81th, and 85th amendments to the Constitution that inserted articles 16(4A) and 16(4B) into the fundamental rights. Although these articles of the Constitution has nullified the various judgments of the Supreme Court. The Court held -

    [T]he state is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the state has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.

    The judiciary’s passing comments on the creamy layer have also been highly controversial there have several debates on the real effectiveness of the policy of reservation in light of the ‘creamy layer’ – the forward members of backward classes – cornering most of the reserved quota.

    The creamy layer principle entails that the affluent persons among the backward classes must be kept out of the reservation scheme as such persons neither require nor deserve the positive discrimination. For the first time judiciary has categorically stated the power of the state to reserve posts is controlled by the Principle of creamy layer

    The Supreme Court held in M. Nagraj case that reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country … if the creamy layer among backward classes were given some benefits as backward classes, it will amount to equals being treated as unequals. It emphasized that any law that fails to take this principle into account would ho against the fabric of equality of opportunity and would be unconstitutional.

    The Supreme Court while holding that the ‘creamy layer’ among the reserved category be kept out of the purview of reservation, which shall not exceed 50%, has cautioned the government than excess quota will result in reverse discrimination. Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination on principle and affirmative action under which the state is obliged to provide a level playing field to the oppressed classes, said in M. Nagraj case, a five-judge Constitutional Bench headed by Chief Justice Y.K. Sabharwal.

    The bench opined that Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense, otherwise it will perpetuate casteism in the country. The Judges said: The equality of opportunity under Art. 16(1) is for each individual citizen, while the special provision under Art. 16(4) is for socially disadvantaged classes. Both should be balanced and neither should be allowed to eclipse the other Therefore, if in a given case the court finds excessive reservation under the state enactment, such an enactment is liable to be struck sown since it would amount to derogation of the constitutional requirements.

    The Supreme Court in this case has also recognized that equality of opportunity does not mean mere formal equality. What Rawls•calls ‘fair equality’ is termed as ‘egalitarian equality’ or ‘proportional equality’ by the court. But the Rawlsian theories clearly show that even this fair or egalitarian equality that is effectuated through affirmative action programmes like reservation is essential an individual rights. The right is conferred not on a group but on the individuals comprising the group to guarantee each one of them a level playing field.

    Therefore only those individuals who have actually been denied an equal start in life and lack the initial social and educational endowments are entitled to preferential treatment and no one else.

    Recently number of petitions has been filed in the Supreme Court challenging the validity of government notification of the Central Educational Institutions (Reservation in Admission) Act•providing 27% reservation to OBCs in centrally-run educational institutions of advanced studies. Supreme Court already stayed the operation of the impugent notification on March 2007, in our, two judge bench. Justice Pasayat was the presiding judge. In this two-judge bench case, court has asked the government during the case discussion about the basis of the data for deciding 27% reservation.

    Actually the judgment stays the implementation of the OBC quota in education primarily due to two reasons:
    1. There does not seem to be any basis for the government to declare that 27% is the need for reservation for OBC’s. It seems that the government took the total quota available (50%) reduced the current SC/ST and came up with the figure of 27%. In addition, the only basis for the data right now is the census from 1931 (i.e. a census carried out when the British ruled India (76 years ago) and Pakistan, Bangladesh were part of India. Such old data cannot from the basis of any reservation percentage.

    2. The government, inspite of previous indications from the courts, has not implemented the concept of ‘creamy layer’ while doing these reservations.
    In these petitions petitioners are opposing the caste-based reservations on the ground that such quota will not only divide the Indian society along caste lines, but will also adversely affect the efficiency of the administration Hon’ble Chief Justice of India K.G. Balakrishnan has constituted a five-judge constitution bench for hearing the batch of petitions, headed by himself on August 7, 2007.

    The apex court will first of all hear on August 7, 2007 the application of the central government, seeking vacation of the above interim stay order. The centre is however, of the view that since the OBCs have been oppressed for centuries on the basis of their caste, they have become socially, educationally and economically backward and hence they deserve some concessions in the form of affirmative government action to bring them at par with the better placed sections of the society. Centre also contended that General category students shall not be prejudiced as the government is increasing the seats to implement the policy, and there is no problem so far as quota for SCs and STs is concerned. The central government also argued that the policy of reservation for OBCs in educational institutions is in conformity with the government’s policy of social justice.

    The petitioners argued that implementation of the quota law would divide society on caste lines and result in perpetuation of the caste system. It would create entrenched rights which, in turn, would create pressure or opinion groups. Reservation was intended only as a bridge to shorten the gap and it could not be continued in perpetuity. Further as per Supreme Court judgments, the state was bound to review reservation from time to time and what was once a backward class could not be treated as a BC forever. It was argued that failure to exclude the creamy later from the benefits of reservation would render the quota law unconstitutional and void. As the creamy later would be the socially and educationally advanced section of a caste, its inclusion would results not only in unequal being treated as equal but also in the rest of the backward caste losing the benefits of reservation to this advanced section. Although the Supreme Court on Thursday 1Nov. 2007 reserved verdict on the petitions assailing the Central Educational Institutions (Reservation in Admission) Act, 2006 providing for 27% OBC quota, and the 93rd Constitutional Amendment under which the legislation was enacted. Now the central government haven’t any option to protect the legislation from judicial review, because the apex court already ruled in the case of IR Coelho (Dead) by LRs v. State of Tamil Nadu, • a nine Judge bench, that the court can review the laws, has kept in the ninth schedule of the Constitution. Certainly the governments were misusing the provision.

    The arguments which May put forward against the reservation policy are:
    1. Merit will be compromised :
    We begin with the basic assumption that all human beings are born with enormous, if not equal, capacities. There are several studies and research to show that human intelligence is a very dynamic and difficult to measure and near impossible to replicate entity (look at the recent works by Steven Pinker, Roger Penrose). Besides there is no evidence to claim that it is inherited differentially either on the basis of race, gender or class (look at the debate on Bell curve in US). If it is not inherited differentially then why is it that the Brahmans and other upper castes who comprise only 17.58 % of the total population get more than 70-80% of seats in jobs and education, while the remaining 80% manage to get hold of less than 30% of the seats? ( IIT Chennai example can be a case in point). This is a de facto reservation operating in their favor.

    And if we assume that it is the meritorious who have occupied the best positions in this country all this while, why is it that India was plagued with mediocrity, incompetence, corruption and inefficiency for last 60 years?. It is wrong to blame the lowers castes for these ills which never got the opportunity to perform.
    The definition of ‘merit' which is considered in these institutes of higher learning is very narrow. Besides, the literature in sociology, psychology and linguistics has firmly established that such ‘merit' is ‘acquired', rather than ‘inherited' The kind of ‘merit' that is talked about is determined not only by economic but also by socio-cultural background of the concerned individuals. The contemporary sociological literature talks, in addition to economic capital, about the social capital (social network, family background, education etc.) and cultural capital (for ex. fluency in English and articulation, acquired through family and elite schooling and through social capital) that contributes to the acquisition of this ‘merit'. So the social and cultural deprivation of the backward castes and communities is as important as the economic deprivation. This deprivation has been there due to the historical processes of social, cultural and even political exclusion and oppression. Moreover, in addition to this deprivation many of the lower castes also face caste based ostracism which hinders their acquisition of this ‘merit'. Even today in many Indian villages untouchability is practiced. In many schools Dalit children are not allowed to sit with the upper caste Hindu children, they cannot drink water from the common water-taps.

    2. Reservations would create caste based divisions :
    We say that the caste based divisions and inequalities are already there. So the reservation policy is not creating them out of nowhere. It is not even enhancing these divisions. Instead reservations are one of the ways in which this division can be leveled.

    3. This is a political game plan of the politicians to gain votes : We say this is not supported by facts.
    There are a large number of failings in the reasons publicized by the government for implementing this reservation. Firstly, the government has rooted its decision in a survey conducted by the Britishers prior to Independence, on the percentage of the OBCs in the population. The reserved category candidates occupy nearly 52% of the government jobs today. Then what is the immediate need to increase the quotas? Though the government would not agree to it, most people feel that this is just another way of wooing the voters.

    There is not an iota of doubt that Reservation and social justice is the need of the hour but it must be only to the extent that the efficiency of the govt. is not affected. Article 335 states that the claims of the SCs and STs shall be taken into consideration consistently with the maintenance of efficiency of administration in the making of appointments to the services and posts in connection with the affairs of the union and of a state. At the same time, in a campaign to extent of punishing those excluded from the benefit of reservation. We cannot also make to strive to transform hitherto upper classes into the weaker classes. This may lead to utter frustration among the meritorious youth and brain drain. It would in turn be a retrogressive step.

    After going through the whole discussion it is quite clear that Reservation is not an atonement of our past sins and should not be used to compensate for the damage inflicted in the past. It is still a bitter fact that certain sections of the society are exploited and deprived of their rights. At the same time we should also have in the mind that despite the provision of reservation being continued for around six decades, the problem of social inequality remains. The solution, therefore, is not in reservations but elsewhere.

    In my opinion, this current slogan comes very close to the truth. There are multiple reasons in saying so. For one thing, the current policy fails to achieve its purpose of giving equal opportunity to everyone, because of lack of infrastructure in the rural areas of the country, where the proportion of backward classes is significant. Secondly, it fails to establish a national standard, which causes disequilibria in the status of the states. Thirdly, in real terms, there is no abolishment of caste system. Instead, the disparity increases because of antagonistic attitudes on both sides. The members of lower classes still feel that they do not have sufficient representation and the members of upper classes feel that in spite of their merits, they do not have the same opportunities. Last, but not the least, the other minorities are demanding reserved representation too, which would ultimately lead to a situation where the seats left for the majority would not be proportional with their population. This therefore, becomes a cyclical issue, rather than an equal opportunity issue.

    Another problem that arises from the equal opportunity reservation policy is that the merits of the backward classes are never truly recognized. This compromises with the efficiency of the country. The government of India provides tremendous funding for educational institutions. When people who do not utilize them fully use these resources, it leads to a waste. In addition, people on reservation quotas do not get equal treatment in the society once they get qualified because of the stigma associated with reservation. Reserved seats in the Legislature and some educational institutions for women, also leads to a similar problem of unequal treatment in the end. Thus, the whole purpose of providing equal opportunity gets defeated. The caste system and discrimination have persisted in spite of the reservation quotas. Reverse discrimination is widespread and everyone wants to take total disadvantage of the existing system. This leads to corruption, inefficiency, and equal treatment to unequal. This equity issue is the base of many current problems in the Indian society, polity, and economy today.

    It would be my sincere request to the policy makers and intellectual person that Merit needs to be the prime yardstick in any selection. This can be surely done only if we discourage caste system by becoming truly secular: by abolishing all references to caste & religion in public life and in gubernatorial affairs. If this is not done, the people who are adversely affected by reservations will breed contempt for India as a State, although they will love India as their country. Frustrated at being constantly deprived, in spite of performing better than those benefited by reservations, such groups may demand a land of their own. It may well be impossible for all judicial, legislative, and even military attempts to thwart such a demand and another partition will not be far if the present policy is continued.. Such a policy of favouring persons on the basis of their birth will surely pave the way for balkanization of India, which we need to avoid.

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