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Reservation Policy in India after 73 years of Independence: A State Obligation or a Constitutional Ambiguity?

Reservation policy has been an integral part of public policy of both the British India and princely India. It was primarily a policy formulated by the British to provide representation to the Indians in the administrative set up, which eventually extended to recruitment, promotion and educational institutions. The successor democratic governments continued to pursue this policy with the exception of bringing some make-up alterations to it now and then.

The states in India were given the liberty of implementing reservation policy on the basis of criterion evolved by them. This was to enable them to adopt policies which were considered best and in consonance with circumstances prevailing therein. Hence a common ground was not found either in determining the backwardness and also the percentage of reservation to be provided for its elimination.

Visionary approach: Empowerment of the deprived

India's affirmative action policy, more popularly known as Reservation Policy, is authored by the provisions in the Indian Constitution which was adopted in 1950, though its initiation at the country level dates back to the early 1930s.[1] The two important features of the provision in the constitution which needs to be acknowledged for the purpose of this working paper are: the principle of Nondiscrimination and Equal opportunity and the provisions enshrined in the Constitution empowering the State to take steps to ensure equal opportunity.

Article 16 provides for equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State. It bans discrimination, particularly in any employment or appointment to any office under the state on grounds of religion, race, caste, sex, descent, place of birth, residence, or any of them.


Issues Related to Implementation of Reservation

There are various issues pertaining to implementation of reservations in employment, education and other spheres that need attention.
  1. Problems of Access and Exclusion:

    It appears that the continuing disparities in the attainment level are closely linked to the lower access of the socially marginalized groups of SC/STs to sources of income and human resource capabilities (such as, capital assets like agricultural land), non land assets, lower urbanization, employment diversification away from agriculture, exceptionally high dependence on casual wage labour, higher underemployment, lower daily wages, particularly, in non-farm activities, low level of literacy and low level of education, compared with Non SC/ST groups.[2]

    The empirical evidence also shows that low access to resources, employment and education of marginalized groups, as compared to Non SC/ST groups, is closely linked with the processes of exclusion and discrimination; partly carried forward as residual of old caste system to the present. When the affected people try to gain education or try to participate in other learning platforms, they are subjected to discrimination.
     
  2. Discrimination and Atrocities:

    The SCs also experience the fangs of violence and atrocity during their attempts to secure human rights and lawful entitlements. The negative experiences, therefore, assume a variety of forms: ranging from social and economic boycott to physical violence: The major causes of atrocities and other offences against Scheduled castes and tribes are related to issues of property, access to water, payment of wages, indebtedness and bonded labour. Issues of human dignity, including compulsion to perform distasteful tasks traditionally forced on SCs, and molestation and exploitation of Dalit women are also involved. The economic factors also worsen this caste based stress, which in turn leads to violence.
     
  3. Problems of Justice:

    Despite legal measures in seeking legal safeguards against discrimination in employment, education and other spheres, the SC/STs continue to suffer from discriminatory access to the institutions of justices which are responsible for delivering justice. Studies concerning this aspect of discrimination indicate that SC/STs are generally faced with insurmountable obstacles in their efforts to hunt justice in event of discrimination: during registration of a legal case or while taking over matters at various levels of the institutional setup, for e.g., before the police, the general public prosecutors and other official functionaries.

Extension of Reservation

Political reservation has a definite time limit. Initially, reservation was provided for a ten year period, with a provision for extension after every ten years. Accordingly, since its inception it has been extended after every ten years. The present extension is up to 2020.

However, the ten year limit is not applicable to reservation in government services and governmental educational institutions. While the Constitution made a general provision for adequate share to be provided for the SC/STs, it is left to the discretion of the Government to decide when the reservation policy could be called off; which could be done as and when it believed that discrimination against the SC/STs may no longer be a major problem and that they are genuinely uplifted, and have gained due representation and participation in normal course of life.

The same criterion was to be utilized for the extension/calling off of reservation in legislature after every ten year. It is necessary to recognize that although there is a minority view that expresses concern about the indefinite extension of reservations, the dominant view is and has remained in favour of extension. The latter support reservation as long as discrimination and social exclusion of SC/STs persists.

Since social exclusion and discrimination of SC/STs is prevalent on a large scale in multiple spheres and that these groups continue to be deprived of basic rights, there is an excellent support in the Government institutions for reservation policy without taking into account the time constraints and extensions. In fact, given the exclusivist character of the Indian social order, reservation in government services have been extended to include other groups: Other Backward Castes (OBCs, who constitute 27 per cent of India's population); SCs who have converted into Sikhism and Buddhism; and the backward caste Muslims.

The case of reservation for SCs who have converted to Christianity is presently under consideration. Reservations in government services for Muslims have already been announced by a few states in a limited scale. There are differences regarding the targeting of reservation within the group that has been identified to be under the reserved category. For example, within the OBCs, the relatively better-off classes are termed ‘creamy layer' and are thus, excluded from the umbrella of reservation.

One is categorized as belonging to the ‘creamy layer' on the basis of one's income and other supplementary indicators. The concept of ‘creamy layer' however, has not been applied to SC/STs because the ones who are relatively better off, as well as the ones who are worse off still have to face reservation and are not able to participate in the decision making.[3] At the same time, the relatively better-off SC/STs do suffer from exclusion and discrimination based on the income criterion, although, in theory, they are entitled to reservation in government jobs, educational institutions and the legislature.

Conclusion

Given the structural inequalities and exclusionary and discriminatory character of Indian society, the State has developed remedies against caste and ethnicity-based exclusion and discrimination and for empowerment of excluded groups, the SC/STs, which constitute about one-fifth of India's total population. The safeguards against exclusion and discrimination in the forms of legal measures and affirmative actions cover public employment, public education and legislative seats and also other government amenities like public housing, etc. However, affirmative action policy in India is confined to the government sector only and the vast private sector is excluded from its jurisdiction.

The Government has used some sort of an informal affirmative action policy in the private sector. Over time, there has been considerable improvement in the share of SC/ST reservation and representation in government employment and educational institutions. The reservation in legislative bodies has also ensured the SC/STs some space in the executive and decision making process.

The impact of formal reservation policy in government sector and informal affirmative action policy in private sector has led to some improvement in the human development of SC/STs. Despite positive improvements, the disparities in human development between SC/STs and non SC/ST continue even today.  At the time of the implementation of reservation policy, there are some glaring issues as well which need to be addressed. Although the Government has taken steps to improve the implementation of reservation policy, there has been resistance to the policy in indirect forms and as result, its success is uneven across sectors and department.

Reservations is close to the population mark of SC/STs in lower categories of jobs, but lower than the population mark in case of high grade positions and technical education institutions. Owing to the indirect nature of resistance to implementation of reservation policy, the extension and the percolation of the reservation policy to several government sectors has been slow.

The other issue that recently acquired prominence is the demand made by SC/ST groups to extend the affirmative action policy of the Government to the private sector employment and educational institutions and other private sector spheres as well; this is under active consideration by the Government of India. In the Indian context, it must however be mentioned, that given the exclusionary character of Indian society and exclusion linked deprivation of a vast section of the population, there has been a need for a general reorganization of the affirmative action policy for discriminated groups.

End-Notes:
  1. Ambedkar, B.R., The Hindu Social Order - Its Essential Features, in Vasant Moon (Eds.), Dr. Babasaheb Ambedkar - Writings and Speeches, Department of Education, Government of Maharashtra, Bombay, 1987, Volume 3, pp. 95-115
  2. https://shodhganga.inflibnet.ac.in/bitstream/10603/166672/8/08_chapter%204.pdf
  3. https://journals.sagepub.com/doi/abs/10.1177/0019556119970335?journalCode=ipaa

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