File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

India's Reservation Policies

The aim of this paper is to identify the issues and provide some possible solutions for India's reservation policy. To complete the project and determine if the writer has used empirical and descriptive methods, the writer has based his research on Articles 15 (4), 16 (4), 46, 340, 341, 342 of the Indian Constitution, among others.

He is dependent on books, journals, newspapers, and online databases for this document. The thorough reading of Articles 15 and 16 of the Indian Constitution to determine if the reservation policy is satisfactory and accomplishes its goals. The aim of this paper is to examine the provisions of Articles 15 (4) and 16 (4) of the Constitution.

The author also relied on case law in his study.

The writer posed the following questions to which he attempted to find an answer:
  1. What is the intention of India's reservation policy and what is the idea behind it?
  2. In terms of reservation, who are the poorer parts of society?
  3. What are the issues with reservations and how can they be resolved?

Introduction:
Reservations were introduced in India during the last decades of the nineteenth century, when the subcontinent could be divided into two major types of governance: British India and 600 princely states. Any of these states were forward-thinking, eager to modernise through the promotion of education and industry, as well as the preservation of the environment. The sense of belonging among their own people The awakening and development of the people in South and Western India piqued their interest of minorities and the poorest members of society.

One of the Constitution's goals and objectives is to ensure equality of status and opportunity for all people, as well as to foster fraternity among them all while preserving the individual's dignity and the nation's unity and integrity[1]. It is worth noting that, since the right to equality and prohibition of discrimination against any citizen on the basis of religion, race, caste, sex, or place of birth were insufficient to make the basic human right meaningful to the weaker sections, the framers added additional provisions[2], namely, Articles 41, 45, and 46 of the constitution, requiring positive state action and allowing reservations in some areas in education[3]and in posts and appointments[4] in a manner consistent with the administration's performance.

Article 334 originally provided for a ten-year allocation of seats in the House of People and state legislative assemblies for scheduled castes and tribes. However, by successive constitutional amendments, this reservation has been extended from time to time, all the way up to 2010 AD. Article 340 establishes a commission to study the situations of economically and educationally disadvantaged groups and make recommendations on how to improve their situation.

Both of these provisions are aimed at ensuring the rapid uplift of the nation's poorer sections in order to ensure equality of status and opportunity, which will foster national fraternity, solidarity, and dignity. Dr. B.R. Ambedkar had stressed the importance of promoting social and economic equality in the constituent assembly debate in order to make democracy meaningful and workable.[5]

There are two types of reservation in our Indian constitution:
  1. Reservations in admissions to educational institutions
  2. As reservations in posts and appointments in government offices.

India's population was largely economically, educationally, and politically backward. Scheduled Castes, Scheduled Tribes, and Other Backward Groups are the three categories of backward people. The Government of India has established a quota system in which a percentage of positions in government and public sector units, as well as in all public and private educational institutions, but not in minority-run educational institutions, are reserved for the Backward Classes.

This system was created to help people who are behind the times.Socially and educationally disadvantaged groups, as well as scheduled castes and scheduled tribes, are underrepresented in government programmes and educational institutions. Reservations are also made available to Scheduled Castes and Scheduled Tribes for inclusion in India's Parliament.

India's Reservation Policy In Historical Context.
India has evolved into a permanent machine that provides reservation to its citizens based on castes and faith, as well as social and educational backwardness, in order to garner the most votes.

There have been some significant historical incidents in India's reservation policy they are:
  • When the British controlled India, there was a system of reservation in place.
  • In 1882, the Hunter Commission was created, and Mahatma Jyotirao Phule demanded free and compulsory education for all citizens, as well as government jobs.
  • In the state of Kolhapur, a notification in 1902 established a 50 percent reservation in services for backward citizens. This was India's first notification establishing a quota for the welfare of backward people.
  • Reservation was implemented in 1908 to benefit the castes and cultures that played a role in the administration under British rule
  • The Government of India Act, 1909, also known as the Morley Minto Reform, made provisions in 1909.
  • The Government of India Act, 1919, included provisions for reservation in 1919.
  • In 1921, the Madras Presidency issued a government order granting non-Brahmins 44 percent quota and Muslims 16 percent.
  • Anglo Indian Christians have a 16 percent quota, while Scheduled Castes have an 8% reservation
  • The Government of India Act, 1935, included provisions for reservation in 1935.
  • Our Indian Constitution went into effect on January 26, 1950.
  • In the case of State of Madras v. Smt. Champcam Dorairajan[6], the court ruled that caste-based reservations were unconstitutional.
  • Infringes on India's constitution, Article 15 (1).
  • The first constitutional amendment was enacted to overturn the above-mentioned decision and provision (4) of Article 15.
  • The Kalelkar Commission was formed in 1953 to investigate the condition of the socially and educationally disadvantaged.
  • In the case of Balaji v. Mysore[7], the Supreme Court set a 50% reservation ceiling in 1963.
  • Rajasthan has given 68 percent reservation, while Tamil Nadu has given 69 percent (under 9th Schedule)
  • The Mandal Commission was formed in 1979 to investigate the condition of socially and educationally disadvantaged people.
  • In its 1980 report, the Commission proposed that the current quota structure be changed.
  • Vishwanath Pratap Singh adopted the Mandal Commission's recommendations in government employment in 1990.
  • The Narsimha Rao government implemented a 10% special quota for poor in 1991.
  • The 77th Constitutional Amendment of 1995 attached clause (4) (A) to Article 16 of the Constitution, granting reservation in promotions to SCs and STs.
  • In P. A. Inamdar & Ors. v. State of Maharastra held that
  • Profit technical schools, as well as minority and unaided private colleges.
  • The 93rd Constitutional Amendment was introduced in 2005 to guarantee the reservation scheme.

A Special Provision Has Been Made For The Promotion Of Backward Classes
Article 15 (4) of India's constitution provides for the development of all socially and educationally backward people, as well as the Scheduled Castes and Tribes. As a result of the decision in the case of State of Madras v. Champakam Dorairajan[8], this clause (4) was inserted by the 1st Constitutional Amendment Act, 1951. The Madras government had reserved seats in state medical and engineering colleges for different communities based on faith, ethnicity, and castes in this case.

This was challenged in court because it was found to be in violation of Article 15 (1) of the Constitution. The state defended the legislation, claiming that it was passed to encourage social justice for all members of society, as required by Article 46 of the DPSP. The Supreme Court declared the law reserving seats on the basis of religion, race, and caste to be null and void.

The student was graded based on castes, faith, and other factors rather than on merit. To alter the impact of the preceding ruling Article 15 of the SC was revised, and clause (4) was inserted. The STATE is allowed under this clause to make special provisions for the development of socially and educationally backward people, as well as scheduled castes and scheduled tribes. Article 15 (4) is merely a permissive clause that imposes no duty on the state to take any specific action. If required, the state has the authority to make reservations.

Two points must be decided in order to make a reservation under Article 15 clause (4):
  1. Who are the socially and educationally backward classes?
  2. What is the reservation limit?
The term backward classes is not specified in the Indian Constitution. Article 46 uses the phrase the weaker sections of the population, which the Supreme Court has defined to mean "all sections of the people who are made weaker due to factors such as poverty and physical and natural handicaps."[9]. In addition, Article 16 (4) uses the phrase "backward class of citizen."

The commission for the backward classes was formed first.
Article 340, on the other hand, gives the President the authority to create a Commission to investigate the circumstances of the economically and educationally disadvantaged. In 1953, the President of India constituted the 1st Backward Classes Commission, which was chaired by Kaka Kalelkar, in accordance with Article 340 of the constitution. The commission may make recommendations to the federal and state governments on how to alleviate the problems that the socially and educationally disadvantaged face.

It was made with the following goals in mind:
  • For the purpose of deciding the criterion to be used in determining whether any segment of the Indian population, other than SC and ST, is socially and educationally backward.
  • For the purpose of studying the working conditions of such groups and the gaps that exist between them.
  • For making recommendations to the Union or any state about how to overcome obstacles and improve economic conditions.

For defining socially and educationally disadvantaged classes, the Commission adopted the following criteria: The traditional caste social status in Hindu society.
  1. A caste or community's main segment has a lower level of educational development than the rest of the caste or community.
  2. Inadequacy of government service representation.
  3. Inadequacy of representation in the fields of commerce, manufacturing, and trade.

On March 30, 1955, the Kaka Kalelkar commission submitted its report. It had compiled a list of some of the commission's recommendations, which were as follows:
  1. Keeping a caste-by-caste population record in the 1961 census.
  2. Considering all women to be a 'backward' class.
  3. Seats for backward classes are reserved at 70% in all educational institutions.
  4. Vacancies in all government services and local bodies should be reserved for OBCs.

Mr. Kaka Kalelkar, the commission's chairman, was dissatisfied with the commission's recommendation because the report was ambiguous. He sent a letter to the President opposing the commission's recommendation. The commission's report, however, was rejected by the central government because it did not use any objective tests to define the Backward Class.

The Mysore Government issued an order under Article 15 (4) in Balaji v. State of Mysore[10], reserving seats in the state's medical and engineering colleges as follows:
  1. 50% of the population belongs to the backward and more backward groups.
  2. Scheduled castes account for 15% of the population, and
  3. Scheduled tribes account for 3% of the population.

As a result, 68 percent of the seats were reserved. The legitimacy of the order was questioned by a candidate who was denied entry. Under Article 15, the Court held that sub-classification by order between backward and more backward was not justified (4). It was also decided that backwardness could not be determined solely on the basis of "caste." Backwardness must be both social and educational, not one or the other.

As a result, the government concluded that further research was needed in order to devise some workable criteria for identifying socially and educationally disadvantaged groups in order to provide them with all possible assistance.

Second Commission on Backward Classes
The Janata Party government (under Prime Minister Morarji Desai) agreed to create a second backward classes commission in 1979. Mr. B.P. Mandal, the chairman of the board, was known as the Mandal Commission.

For defining the socially and educationally disadvantaged classes, the Commission adopted the following criteria:and There are three types of criteria: social, educational, and economic.

In December of 1980, the commission submitted its draught. According to the study, OBCs made up about 52 percent of India's total population, including Hindus and non-Hindus. The commission proposed a 27 percent reservation for OBCs. For a long time after the mandal report was submitted, no action was taken. The commission largely associated castes with the lower classes and largely ignored the economic test[11]

Following the backward class commission's report, the issue of defining backward classes was brought before the Supreme Court in the case of Vasant Kumar[12]. The Supreme Court's judges unanimously decided that "caste" could not be the sole determinant of backwardness.

Indira Sawhney v. UOI[13], also known as the Mandal Commission case, is a landmark Supreme Court decision on the issue of reservation of jobs for the underprivileged. In 1990, the V.P. Singh government released an official memorandum approving the mandal commission's recommendation and declaring a 27 percent reservation for socially and educationally backward classes in vacancies in civil posts and government of India services. The memorandum was challenged in the Supreme Court, and the bench of nine judges considered it.

The SC's most positive feature can be illustrated here:
  1. A year's worth of reservations is limited to a maximum of 50%.
  2. The backward class does not have the creamy layer.

What is the difference between Scheduled Castes and Scheduled Tribes?
The Scheduled Castes and Tribes have long been considered the most disadvantaged members of Indian society. To compensate them, India's constitution included a special clause in their favour. There are special arrangements for SC/ST in government services and legislative bodies, as well as preferential admission into educational institutions.

The question now is who falls into the SC/ST group. The Indian constitution is silent on who constitutes a member of the SC or ST categories. However, Articles 341 and 342 give the President the authority to compile a list of these castes and tribes. According to Article 341 of the Constitution, the President, after consulting with the Governor, specifies the castes, races, or tribes, or classes within castes, races, or tribes, for the purposes of their constitution. Any caste, race, or tribe may be included or excluded from presidential notification by Parliament by legislation.

Admissions With A Reservation
Reservations in educational institutions can be made for Women under Article 15 (3), Socially and educationally backward classes, Scheduled castes and Scheduled Tribes under Article 15 (4), and Other grounds not falling under Articles 15 (3) and 15 (4).

The 1st Constitutional Amendment Act, 1951 was enacted by Parliament in response to the decision in State of Madras v. Champakam Dorairajan[14], and clause (4) was added to Article 15 to address the difficulties in the case. The State of Madras reserved seats in educational institutions on the basis of castes, faith, colour, and other factors, which was ruled unconstitutional because it violated Article 15 of the Constitution (1). The new clause (4) now allows the state to make special arrangements for individuals who are economically and educationally disadvantaged. The state is now free to set aside seats in educational institutions.

Is it possible for the government to reserve seats in privately operated educational institutions?
The Supreme Court ruled in the T. M. Pai Foundation case[15], the Islamic Academy case[16], and the P. A. Inamdar case[17] that the state cannot make reservations for seats in privately operated educational institutions. To override the effects of both of the preceding situations, the Parliament added a new clause[18] (5) to Article 15, allowing the state to set the reservation in privately operated educational institutions as well.

However, under Article 30 (1) of India's constitution, this provision does not apply to institutions owned by minorities. It is now clear that the government has the authority to make reservations in private educational institutions as well. The question now is that what would be the reservation's limit, as the Supreme Court decided in the Balaji case[19] The Supreme Court ruled in this case that Only up to 50% of seats can be reserved by the state.

Services Reservation
Article 16 (4) of India's constitution provides for the reservation of appointments or positions in favour of any person. Citizens from "backward classes" who, in the opinion of the government, are underrepresented in public services a state The term "State" refers to both the federal and state governments, as well as their agencies. The fourth paragraph of Article 16 is used.

Only if two requirements are met:
  1. The citizens' class is backward, and
  2. The citizens' class is underrepresented in the state's programmes.
The Supreme Court[20] explained that Article 16 (4) is an enabling provision conferring on the state the discretionary power to make any reservation of appointments or posts in favour of any backward class of people who, in the view of the state, is not adequately represented in the state's services. For the purpose of alleging reservation, Article 16 (4) does not place any constitutional obligations or confer any fundamental rights on anyone[21]

In Devadasan v. UOI[22], the Supreme Court found the scope of Article 16 (4). In this situation, the constitutional legitimacy of the government's bear forward law for regulating the recruitment of people from lower social groups to government jobs was at stake. If a sufficient number of SC/ST candidates were not eligible for the appointment of reserved quota candidates, the vacancies that remained unfilled would be considered as unreserved and filled by the fresh available candidates, but a corresponding number of posts would be reserved for SC/ST in the following year in addition to their reserved quota for the following year.

The carry forward law was declared unconstitutional by the court. However, in Mandal Commission case[23], the Supreme Court overruled Devadasan and held that the "carry forward law" is applicable as long as it does not exceed 50% of vacancies in any given year.

The Supreme Court issued the following rulings in this case:
  1. The backward classes must exclude the creamy layer;
  2. Unlike in the case of Balaji, it is permissible to divide backward classes into backward and more backward categories.
  3. Reservations do not exceed 50%.
  4. There are no reservations in the promotion
The government enacted the Constitution 77th Amendment Act, 1995, to nullify the argument "no reservation in promotion," and a new clause (4A)[24] was added to Article 16 as a result.

Difficulties
  1. India's quota policy will never be abolished.
  2. In India, reservations are typically based on caste and religion[25].
  3. There is no information available to determine who benefits from reservations.
  4. Families who become wealthy receive reservation benefits as well.
  5. Many times, real poor people are unaware of their right to reservation benefits.
  6. Indian society is divided along the lines of caste, faith, and gender.
  7. Well-qualified applicants are barred from important administrative positions.
  8. In the name of reservation policy, there is a lot of corruption.
  9. Reservation benefits are distributed to the appropriate beneficiaries via the mediator; however, the mediators are abusing the government's policy, which is not the right way.
  10. The reservation policy is not being observed properly.
  11. Reservations are made from general seats, not from seats created specifically for people from economically and educationally disadvantaged groups.

Resources For Solutions
  1. First and foremost, the government must create a database that identifies who is receiving reservation benefits. Such a database should be open to the general public.
  2. The backlog clause must be removed, and the remaining vacancies must be filled by eligible applicants within one year.
  3. Reservations shall not be made on the basis of caste. It must be based on economic, social, and physical limitations.
  4. The government should conduct an annual review of the reservation policy, and
  5. The government should establish a special and separate post for the weaker sections of society, rather than interfering with general seats.
  6. Reservations should be dependent on the family's total salary, which includes both the husband and wife's salaries as well as all other sources of income.
  7. Only a small number of children in a family would be eligible for reservation benefits.
  8. The reservation should not be for the purpose of promotion, but rather as a one-time assistance.
  9. The creamy layer definition can also be included in the SC/ST groups.
  10. Prior to granting the reservation to the poorer members of society, some economic assistance must be given.

Conclusion
The author ends his work by stating that the oppressed groups cannot be able to remain oppressed indefinitely. The Indian Constitution forbids it. The reservation policy is a band-aid solution to the issue, not a long-term solution.a regressive attitude The government should take measures to ensure that reservation policy is properly implemented.The benefits are provided to those who are in need. In the case of SC/ST, the creamy layer definition should also be implemented.

The poorer parts of society should be granted special economic assistance first in order to survive, and then to reserve their seats. It is important to remember that the reservation can only be granted if the government is efficient in its administration, as Article 335 states that:
The argument of SC/ST shall be taken into consideration consistent with the preservation of administrative efficiency in the making of appointments to the services and posts in connection with the Union and States' affairs.

In India, there are some issues with the quota policy that must be addressed as soon as possible. The author has disclosed such a problem as well as some possible solutions. The government should reconsider reservation policies and take appropriate action in order to ensure that they are implemented properly.

Bibliography
Books
  1. Arvind P. Datar, Commentary On The Constitution Of India, Wdhwa And Co., Nagpur, Second Edition, 2007
  2. Basu, D.D., Commentary On The Constitution Of India, Wdhwa And Co., Nagpur, Vol. 2, Eighth Edition, 2007.
  3. De, D.J., The Constitution Of India, Asia Law House, Hyderabad, Vol. 2002.
  4. Hidayatullah, M., Constitutional Law Of India, Arnold-Heinemenn, New Delhi, Vol. 2.
  5. Jain, M.P., Indian Constitutional Law, Lexisnexis Butterworthswadhwa Nagpur, Sixth Edition 2010.
  6. Seervai, H.M., Constitutional Law Of India Universal Law Publishing Co. Pvt. Ltd., New Delhi, Fourth Edition, 1991, Reprint, 2008.
  7. Singh, M.P., V.N. Shukla's Constitution Of India, Eastern Book Company, Lucknow, Second Edition, 2008.
  8. Constituent Assembly Debate, Vol. 11
  9. Report of the Backward Classes Commission, Chapters IV, V and VII (1980).
Articles
  • P. P. Rao, 'Right to equality and the reservation policy', Journal of the I.L.I,(2000), vol. 42
End-Notes:
  1. Preamble of the Constitution of India, 1950.
  2. Article 41: The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 45: The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. Article 46: The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
  3. Article 15(4): 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
  4. Article 16(4): Nothing in this article shall prevent the State from making 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.
  5. Constituent Assembly Debate, Vol. 11, pp. 979 and 980.
  6. AIR, 1951,SC, p 226
  7. AIR, 1963,SC, p 649
  8. AIR, 1951, SC, 226
  9. Indra Sawhney v. UOI, AIR 1993 SC 477.
  10. AIR, 1963 SC p. 649.
  11. Report of the Backward Classes Commission, Chapters IV, V and VII (1980)
  12. K. C. Vasant Kumar v. State of Karnataka, AIR 1985 SC 1495
  13. AIR, 1993 SC 477.
  14. AIR 1951 SC 226
  15. AIR 2003 SC 355
  16. AIR 2003 SC 3724
  17. AIR 2005 SC 3226
  18. Article 15 (5), it provides that nothing in this Article or in Article 19 (1) (g) shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled castes or the Scheduled tribes in so for as such special provisions relate to admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Article 30 of the constitution of India
  19. M. R.Balaji v. State of Mysore, AIR 1963 SC p. 649
  20. Mohan Kumar Singhania v. UOI, AIR 1992 SC 1, 26.
  21. Indra Sawhney v. UOI, 1993 SC
  22. AIR 1964 SC p. 179
  23. Indra Sawheny v. UOI, AIR 1993 SC p. 477
  24. Article 16 (4A): nothing in this Article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes of posts in services of the state in favour of the SC/ST which in the opinion of the state, are not adequately represented in the services under the state.
  25. P.P. Rao, 'right to equality and the reservation policy', journal of the Indian law institute,(2000), vol. 42, p. 194

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Constitution of India-Freedom of speech ...

Titile

Explain The Right To Freedom of Speech and Expression Under The Article 19 With The Help of Dec...

Types of Writs In Indian Constitution

Titile

The supreme court, and High courts have power to issue writs in the nature of habeas corpus , quo...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly