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Critical Analysis Of Reservation Policy In India

Before one gets into the when, what or how of the reservation policies of the largest democracy in theworld, one must understand the why of the concept.Hindu society is divided into four varna, or classes, a convention which had its origins in the Rig Veda,the first and most important set of hymns in Hindu scripture which dates back to 1500-1000 B.C.

At the top of the hierarchy are the Brahmins, or priests, followed by the Kshatriyas, or warriors. The Vaisyas, the farmers and artisans, constitute the third class. At the bottom are the Shudras the classresponsible for serving the three higher groups. Finally, the Untouchables fall completely outside of this system. It is for this reason that the untouchables have also been termed avarna (no class).

Jati, or caste, is a second factor specifying rank in the Hindu social hierarchy. Jatis are roughly determined by occupation. Often region-specific, they are more precise than the sweeping varna system which is common across India and can be divided further into subcastes and sub-subcastes.

This is also the case among untouchables. Andre Beteille defines caste as:
a small and named group of persons characterized by endogamy, hereditary membership, and a specific style of life which sometimes includes the pursuit by tradition of a particular occupation and is usually associated with a more or less distinct ritual status in a hierarchical system.

The roots of India�s untouchability problem recede beyond history as does the caste system that gave rise to it. This is different from the American setting (black and white racial discord), where the population is not divided into a natural hierarchy conforming to religious belief, with the lowest sector regarded as polluted and untouchable. Nevertheless, there are some parallels with what happened in the United States. Untouchability inspired many Indians to work for reform, including leaders of the independence movement like Nehru and Gandhi. Efforts to help the Dalits began in the 19th century,

first under British colonial administration and, later, from 1947, under India�s independent government.

Untouchability, like slavery in America, was prohibited by constitutional provision. As in the United States, laws, administrative regulations, and commissions have anchored official efforts.

At the center isa network of government:
Managed reservations, positions set aside by quota in legislative bodies, in government service, and in schools at all levels. The hope is that the Scheduled Castes, as Dalits are officially known, can use such opportunities as springboards for better lives for themselves and for integrating themselves more fully into the life of the country. (The situation of India�s ScheduledTribes (ST) is generally similar to that of the Scheduled Castes (SC).

The reservation policy in India is nothing new, as it had existed in our society from the time of the British rule and the princely states. The motive of having reservation then was the eagerness to modernize through the promotion of education and industry and maintaining unity among themselves .Reservation continued in India even after having achieved independence from the British. But there isan interesting fact that needs to be seen, that is the inclusion of provisions of reservation in the Constitution of India based on caste in educational institutions was after the intervention of the Supreme Court in the case of

State of Madras v. Champakam Dorairajan:
where the court struck down the classification for reservation being based on caste, race and religion for the purpose of admission to educational institutions as unconstitutional.

As early as 1858, the government of Bombay Presidency, which included today�s Maharashtra, declared that:
all schools maintained at the sole cost of Government shall be open to all classes of its subjects without discrimination.

Although a 1915 press note revealed that this policy was not being enforced�
In one case, a Mahar boy was not allowed to enter the schoolroom, but was relegated to the veranda the Bombay government maintained its position on the issue, and, in 1923, announced a resolution cutting off aid to educational institutions that refused admission to members of the Depressed Classes.Other initiatives followed including the 1943 Bombay Harijan Temple Entry Act and the 1947 Bombay Harijan (Removal of Civil Disabilities) Act. In the United Provinces, now Uttar Pradesh, the 1947 United Provinces Removal of Social Disabilities Act was put in force.

In what is now Kerala, the Maharaja of Travancore announced the Temple Entry Proclamation in 1936, in what has been called a pioneer [effort] in the field of reforms relating to the eradication of untouchability before in dependence.

Stating that:
None of our Hindu subjects should, by reason of birth or caste or community, be denied the consolations and solace of the Hindu faith, the Maharaja declared the removal of all bars on those denied entry to temples controlled by the Travancore government. Other measures affecting whatwould become the present state of Kerala included the 1938 Madras Removal of Civil Disabilities Act andthe 1950 Travancore-Cochin Temple Entry (Removal of Disabilities) Act.

In March 1947, Britain sent Lord Louis Mountbatten, war hero and royal relative, to New Delhi as the King-Emperor�s last Viceroy. His mission was to transfer power to an independent Indian government. In the end, power was transferred to two successor entities, Pakistan on August 14, 1947, and India on August 15, 1947. Under the Cabinet Mission plan the Constituent Assembly was to consist of 389 seats,296 of which were filled by delegates elected from the directly-administered provinces of British India and 93 of which were allotted to the princely states.

The total number of seats was based on an undivided India, and, overall, represented a cross-section of the population of the country. Given the Muslim League�s boycott of the Assembly, the impact of partition and subsequent migration, and the lengthy process of integrating the princely states, the number and distribution of seats continually fluctuated from the time of the first meeting on December 9, 1946. With the 1947 partition, many Muslim delegates left for Pakistan, terminating their membership in the Assembly. As a result, the body was reorganized. By November 26, 1949, it consisted of 324 seats, divided among the provinces and the princely states and representative of all major minority groups.

The make-up of the Constituent Assembly reflected the reality of what groups wield power in India, then and now. An analysis of membership in the most important advisory committees of the Constituent Assembly found that 6.5 percent were SCs. Brahmins made up 45.7 percent. Minority and Scheduled Caste delegates did have some influence during the Assembly proceedings, with several holding significant positions.

Dr. H.C. Mookherjee, an Indian Christian, was Vice-President of the Constituent Assembly as well as Chairman of the Sub-Committee on Minorities. However, by far the most important was Dr. Ambedkar.From the outset, the Constituent Assembly laid out clearly its objectives and philosophy for the new constitution. Several of the framers� main goals, articulated in the Objectives Resolution, included guarantees of equality, basic freedoms of expression, as well as:
adequate safeguards�for minorities,backward and tribal areas, and depressed and other backward classes.

These principles guided the delegates throughout the constitution making process. The Assembly set up a special Advisory Committee to tackle minority rights issues. This committee was further divided into several subcommittees. The Subcommittee on Minorities focused on representation in legislatures (joint versus separate electorates and weightings), reservation of seats for minorities in cabinets, reservation for minorities in the public services, and administrative machinery to ensure the protection of minority rights. After extensive research and debate, the Subcommittee on Minorities drafted a report of its findings for submission to the Advisory Committee. The latter supported most of the Subcommittee�s recommendations.

Vallabhbhai Patel (1875-1950), Chairman of the Advisory Committee and the most powerful member of the governing Congress party after Nehru, submitted the Report on Minority Rights to Rajendra Prasad,President of the Assembly, and on August 27, 1947, the Assembly convened to discuss the Report. Patel opened the debate by presenting the Advisory Committee�s main recommendations.

Rejecting separate electorates Congress wanted no repeat of the separate electorates granted to the Muslims by the British and a weightage system, the Report endorsed the creation of joint electorates and proportional representation. Reservations were approved for minorities, as long as the reservations were in proportion to the population of the targeted groups. Some minorities, like the Parsis, voluntarily gave up this right. Treatment of the Scheduled Castes was extensively debated.

Efforts by Ambedkar and his allies to craft a provision requiring a tripwire 35 percent of Scheduled Caste votes in a constituency reserved for the Scheduled Castes failed. The principle of common voting and reserved seats inlegislative bodies throughout the country was retained despite strong opposition from influential Constituent Assembly members like Nehru. However, the colonial-era system of having the Scheduled Castes choose candidates for reserved seats through local electoral colleges was dropped.

Throughout the debate, caste Hindus permitted nothing that would suggest splitting off the Scheduled Castes in an electoral sense from the Hindu community.

With an entire section dedicated to Fundamental Rights, the Indian Constitution prohibits any discrimination based on religion, race, caste, sex, and place of birth (Article 15[1]). This law extends to all public institutions, such as government-run educational facilities, to access to hotels and restaurants, public employment and public wells, tanks (manmade ponds for water supply and bathing), and roads. The practice of untouchability is declared illegal (Article 17).

Significantly, Article 15, which prohibits discrimination, also contains a clause allowing the union and state governments to make:
any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.

This language was added in 1951 within weeks of a Supreme Court decision outlawing quotas in school admissions. The speed of the amendment is indicative of the strong political support for reservations, Nehru�s personal views not withstanding.

To give teeth to the protections for the Scheduled Castes and Tribes mandated by the Constitution, India�s Parliament has passed two major laws. The Untouchability (Offenses) Act of 1955 (renamed the Protection of Civil Rights Act in 1976) was intended to provide enforcement of Article 17 of the Constitution, outlawing untouchability. It fell short of expectations. In the words of India�s National Commission for Scheduled Castes and Scheduled Tribes, All the measure s taken were not found to be effective enough in curbing the incidents of atrocities on Scheduled Castes and Scheduled Tribes.73

In 1989 a new law, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, came into force. Similar to an American hate crimes statute, it provides heavier penalties than under ordinary law for eighteen specified crimes including forcing the eating of obnoxious substances, bonded labor, and sexual exploitation.Thus the basic principles on which reservation was based is specified in Articles 14, 15(1), 16(1) and16(2).

Article 14 Guaranteed equality to all: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
That was thefundamental guarantee.

Article 15(1) made that guarantee specific in one particular:
The State shall not discriminate againstany citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Article 15(2):
Guaranteed equal access for everyone to public facilities like wells, restaurants etc.

Article 15(3) Contained a proviso provided:
Nothing in this article shall prevent the State from makingany special provision for women and children.
Notice again: the only categories for which special provisions were envisaged were women and children. In particular, notice that no exceptions were envisaged on the basis of castes.

Article 16(1)
Made the fundamental guarantee of equality. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Article 16(2) did for governmental employed what Article 15(1) did for a citizen�s living in general:
No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

Article 16(4) contained a provison:
Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward 5 class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Therefore to sum up what the Constitutional framers provided we may say:
  1. The fundamental guarantee in every provision was of equality, of non- discrimination.
  2. Caste was most consciously eschewed: the proviso to Article 15(1) spoke only of women and children; Article 16(4) spoke only of any backward class of citizens.
  3. Where caste was mentioned, it was only to prohibit discrimination on grounds of caste.
  4. Where �equality� was made specific in Article 16(1) in regard to employment under the State, forinstance the expression that was used was �equality of opportunity�, an expression that, has been buried deep under the rhetorical flourishes of progressives.

The legal history of reservations in India can be traced back to the cases of:
  1. State of Madras v. Srimathi Champakam Dorairajan and
  2. Venkatraman v. State of Madras
In these cases the Indian Supreme Court held that any legislation and/or executive order prescribing reservations on the basis of caste were unconstitutional. Soon after the said two decisions the Parliament intervened and in exercise of its constituent power amended Article 15 by inserting Clause (4) which states that:
Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

It is also profitable to note that the said amendment was brought about by the very same constituent assembly which drafted the Indian Constitution. Then came up the issue of the ceiling on reservation which was dealt by the Court in the M.R. Balaji v. State of Mysore:
Wherein it was held that under no circumstances can the reservation exceed 50%. Meanwhile, the issue regarding the determination of socially and educationally backward classes was always of grave concern. Article 15(4) does not define �backward classes�.

In Balaji:
It was said that �caste� may be a relevant factor, but not the sole criteria nor the dominant criteria for determination of backward class. In that case, the order of reservation was declared bad asit was based solely on caste without regard to other relevant factors. In Janki Prasad Parimoo v. State of J & K, it was held that poverty alone cannot be the test of backwardness as large sections of population in India are backward and thus the whole object of reservation would be frustrated Various commissions had held public hearings at various places for determination of backward classes.

National Commission held 236 public hearing before it finalized the list. National Commission recommended 297 requests for inclusion and at the same time rejected 288 requests for the inclusion in the final list. The Commission had taken into consideration detailed data with regard to social, educational and economic criteria. It had also looked into whether there had been any improvement or deterioration in the condition of the caste or community (mentioned in the final list) during the past 20 years.

Thus Justice Balakrishnan, in his judgment held that identification of OBC�s was not done solely based on caste. Other Parameters were followed in identifying the backward class. Thus Act 5 of 2007 isn't invalid for such purpose. Justice Dalweer Bhandari, in his dissenting opinion raised various important points. He stated that the ultimate goal of the Constitution is to have a casteless society and determining backwardness on the basis of caste would instead give a fresh lease of life to caste system in India. He propounded that economy should be the sole criteria for determining backwardness and that any proposed affirmative action must be time bound.

The authors most respectfully wish to differ from the opinion of Hon�ble Justice Dalveer Bhandari. We agree with the majority opinion of Justice KG Balakrishnan that caste ought to be considered as a major criterion for determination of backwardness. Caste system has been prevalent in India since time immemorial. Every individual belongs to some caste or the other.

The backwardness of people in Indiacan be traced to the caste they belonged to. Every caste is associated with a particular occupation. That relation could not be severed. An example cited was in the case by learned Counsel Ravi varma Kumar,appearing for the Union of India, that throughout the country in 6.5 lakh villages, it is the barber communities and the barber communities alone, which carry on the traditional occupation of hair cuttings and no other community has taken up the said occupation.

Though it may be said that people have deviated from that occupation and became doctors, engineers, lawyers, etc, but these people forma very small number. This caste-occupation nexus exists till date in the India. Thus the whole caste on the basis of the occupation they follow could be called backward.Thus caste as a criterion cannot totally be ignored. As far as people belonging to these castes, but economically and educationally well off, are concerned, they would fall within the creamy layer (discussed in the next sub section) and would thus be denied the benefit of reservation.

Thus no person would be wrongfully granted the benefits of reservation. As far as the goal of forming a casteless society is concerned, it is not reasonable to expect to achieve such goal in the immediate future. Till such time, affirmative action needs to be adopted for the advancement of castes which are backward. When it is felt that these castes have become sufficiently advanced, then caste as a criteria for backwardness can be disposed off. However, we concur with Justice Bhandari on the view that time limit needs to be propounded for caste-based reservation.

The basis for exclusion of the creamy layer is by far one of the the most important issue before the Supreme Court in Ashok Kumar Thakur v. Union of India. The Hindi version of the Reservation Act which had excluded creamy layer from the ambit of reservation was rejected by the Parliament and the English version of the Reservation Act which did not exclude creamy layer from the benefit of reservation, was accepted.

Thus the intention of the Parliament was clear that they wanted to include creamy layer for the purpose of reservation. The term �creamy layer� in simple words means the elite from the lowest caste. Popular perception is that this term was first coined in Indra Sawhney v. Union of India.

Contrary to popular belief, the said term was first coined by Justice Krishna Iyer, in State of Kerela v.N.M. Thomas, wherein he observed that �benefits of the reservation shall be snatched away by the top creamy layer of the backward class, thus leaving the weakest among the weak and leaving the fortunate layers to consume the whole cake�.

This term was cited again by Justice Krishna Iyer in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India and by Justice Chinnapa Reddy in K.C. Vasanth Kumar v. State of Karnataka raising similar concerns. The roots of this concept can however be tracedback to the case of K.S. Jayashree v. State of Kerela wherein the people belonging to backward class, but whose family income exceeds Rs. 10000, were denied the benefit of reservation.

However, in Indra Sawhney v. Union of India the Supreme Court dealt with creamy layer at length. That case dealt with reservation of backward classes in case of public employment. Justice Jeevan Reddy stated that �creamy layer� can be, and must be excluded from the purview of reservation. He emphasized that upon a member of a backward class, reaching an advanced social level or status, would no longer belong to the backward class and would have to be weeded out.

After excluding the creamy layer alone, would the class be a compact class and such exclusion would benefit the truly backward. The Supreme Court had observed that �the backward class under Art. 16(4) means the class which has no element of creamy layer in it. It is mandatory under Art. 16(4) that the state must identify the creamy layer in a backward class and thereafter excluding the creamy layer extend the benefit of reservation to the �class� which remains after such exclusion.�

In Ashok Kumar Thakur v. State of Bihar, unreasonable conditions were prescribed to identify the creamy layer. Unlike in Indra Sawhney case wherein it was stated that children of any IAS or IPS officer would be denied the benefit of reservation, in Ashok Kumar Thakur v. State of Bihar an additional condition was laid down that the IAS or IPS officer should also be earning a minimum salary of Rs. 10000per month, which condition was quashed as discriminatory.

In Indra Sawhney v. Union of India (II), also known as the Kerala creamy layer case, the Kerela Legislature passed an Act declaring that there would be no creamy layer in the State of Kerela. The Supreme Court in this case further explained the rationale underlying the rule of exclusion of creamy layer. As the creamy layer is not entitled to the benefits of reservation, non-exclusion thereof would be discriminatory and violative of Articles 14 and 16. Thus the Act was declared unconstitutional.

The above cases were with respect to the exclusion of creamy layer from reservation in public employment. The issue of exclusion of creamy layer from reservation in educational institutions was dealt with in Ashok Kumar Thakur v. Union of India. The main contention raised by counsels appearing for the Respondents regarding inclusion of creamy layer for the purposes of reservation centered on the idea that the objective of reservation under Article 15 and Article 16 is different.

The contention was that reservation under Article 15 is not a poverty alleviation programme nor is it a programme to eradicate unemployment and nor is it a programme to educate all the backward classes. It is to bring about equality among different castes. Therefore it was contended that if the lower castes are deprived of the facilities and opportunities in the name of the creamy layer, then it will be counter productive and would frustrate the very object of reservation, namely to achieve equality in status, facilities and opportunities.

Chief Justice K.G. Balakrishnan, addressing the aforesaid contention said that the people belonging to the backward caste, but being economically advanced do not require the protection of reservation. He stated that:
the creamy layer principle is introduced merely to exclude a section of a particular caste onthe ground that they are economically advanced and educationally forward and unless they are excluded, there cannot be proper identification of backward class.

If creamy layer is not excluded, then that would mean that identification of OBCs would be solely on basis of caste and thus violative of Article 15(1) and 16(1). Moreover reservation of OBCs under Article 15 is designed to provide opportunities in education thereby raising educational, social and economic levels of those who are lagging behind.

By excluding those who have already attained economic well being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and if done so, it would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination. Thus, if the creamy layer is not excluded, the identification of OBC will not be complete such non-exclusion of� creamy layer' may not be in accordance with Article 15(1) of the Constitution.

The word social under Article 15(4) and 15(5) is much wider and also includes �economically. Former Prime Minister of Indian Mr. Jawaharlal Nehru said that:
Economic was included in the social portion of social and educationally backward. Only �social and educationally backward� was added under Article 15 so as to maintain symmetry with Article 340 also. Had it not been for a desire to achieve symmetry in drafting, �economically� would have been included. Had this been done, the creamy layer would have been excluded ab initio.

Thus the objective of the founding fathers is very clear that they intended to exclude creamy layer from the benefits of reservation.

The persons included in the creamy layer are already advanced and can be compared to the so called forward section of the society. They can be treated as equals with the forward section of the society. Thus the contention that exclusion of creamy layer would not bring about equality as those people would remain backward, is not well founded. Instead inclusion of creamy layer would mean unequal persons being treated as equal thus being violative of Article 14, 15 and 16.

Another important issue with regard to the creamy layer controversy is whether the restrictions imposed on the creamy layer would apply in case of Schedule Caste and Schedule Tribes also.

The Supreme Court held that �creamy layer� is a parameter to identify backward class. Therefore this principle cannot apply to SCs and STs as they are separate classes by themselves.

The author most respectfully differs from the said view of the hon�ble Court. The Court seems to have assumed that there is no creamy layer from amongst the persons belonging to SCs and STs. The whole purpose of reservation is to see to it that backward classes advance forward. For over 58 years, reservations have been given to SCs and STs and it would be expected that certain sections of SCs and STs would have advanced or will advance forward (socially and economically). The same logic and the same rationale as it applies to OBCs, should also apply to SCs and STs with respect to exclusion of creamy layer.

It was observed in M. Nagraj v. Union of India, that creamy layer from SCs and STs also needs to be excluded.

The Supreme Court seems to have overlooked the said observation.

As discussed the government has kept various welfare schemes for the SC and ST in India. If we take few examples than reservations in educational systems, land allotments for residents (free of cost),agricultural land allotted free of cost for farming etc.I believe that there should be reservation in the educational system of India. Due to which they can also get good and higher education, but at the time of the jobs/ public service there should be no reservation. A person has got almost 22 to 25 years benefit of reservation policy and had completed his studies.

Now he should stand on his own feet and should face the competition in the market. They have got all the things which a person born in other cast has got by now, provided a sane a socially acceptable environment has been supplemented by the general (non SC, ST and OBC) society. Judiciary has played great role in the reservation policy.

In various cases, Supreme Court has given passing reference to the reservation on the SC & ST in jobs. But Supreme court has said that reservation should not increase then 50% in any condition but in most North Eastern state this reservation is increased to 85% and still they have started a move to increase it to the 95% and court is not taking any steps against it. By this way we can see that judiciary is also playing a role in increase of reservation for SC & ST.Now days politicians are playing a major role in reservation policy.

The reservation policy was only for 10years after the independence, for the upliftment of SC and ST but till now it is continue and no one has taken any step to amend it or revise it or to change it. The reason behind this is the population of SC and ST in country.

Nearly 33% voting is done by SC and ST so now if they make any change in the reservation policy against the SC and ST then they have to suffer a lot for the same. So they are not taking any steps against the reservation policy. Now if you consider the theory of John Rawles of justice then he has clearly said that:
Starting line should be / must be the same for all the Persons.

By providing reservation in the educational systems we are giving the same line to all the persons. He further also said that by providing equality in education they are providing equal chance to start to all the persons and further there is no need of reservation in service also.

John Rawles� theory would well settle theoretically but as stated earlier, in a practical paraphernalia the setting and mind set of the unreserved part of population must go hand in hand with the affirmative discrimination policies in making the reserved part of the population come at an actual and affirmative par.

Web Links
  1. J.N. Pandey , The Constitutional Law of India, 46th Ed. Reprint 2009
  2. Ram Ahuja, Social Problems in India

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