The rationale behind the issue of reservation

Introduction and a backgrounder

Indian socio-economic condition appears to be in bad shape considering a data released by Zurich-based Credit Suisse Group AG which show that 1{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431} richest Indians owned 58.4{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431} of the country’s wealth in 2016, up from 53 {c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431} in 2015. According to the report the very rich are expanding their share at a faster clip now. The richest 10{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431} of Indians haven’t done too shabbily either, increasing their share of the pie from 68.8{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431} in 2010 to 80.7{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431} by 2016. In sharp contrast, the bottom half of the Indian people own a mere 2.1{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431} of the country’s wealth. The report points out that India is one of the most unequal society as compared to China where the top 1{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431} own 43.8{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431}, in Indonesia they own 49.3{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431}, in Brazil 47.9{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431}, and in South Africa 41.9{c2bbcdfefa7cf399a86b5f5abe93e020d0a8f945fdf3f010891e938b11f34431}. It’s not a new story.

In fact, Indian society has always been full of inequalities. The society is stratified on caste lines which very often shows a hierarchy, though the Constitution of India enshrines the principle of egalitarianism which means a discrimination-free social order. Under Article 38 of the Constitution of India the state is made responsible for securing a just social order and also for securing welfare of the people.

Article 38 says,

  • The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
  • The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Likewise, the Constitution also mandates community ownership of material resources and prevention of concentration of the means of production under Articles 39 (b) and (c). This signifies the socialist nature of India’s socio-economic system. Non-compliance of these constitutional directions would mean violation of fundamental rights in India as enshrined in Part III of the Constitution. Despite these provisions, existence of large scale inequalities led to the economic backwardness.

The first Backward Class Commission (Kalelkar Commission) in 1953 had said that economic backwardness is not the cause but a result of social backwardness in India. Discriminations were rampant in pre-independent society too which had prompted the framers of the Constitution to incorporate the grounds on which the state shall not discriminate under Article 15(1) comprising religion, race, caste, sex or place of birth.  Considering the serious implications of such discriminations, the Constitution (First Amendment) Act, 1951 inserted Article 15 (4) which provides 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.’

Thus, the social backwardness deprived a large population in India even of the dignity of life. In a society stratified on caste basis, upper castes controlled the levers of power enabling them to run their whips, prejudicial to the interests of lower segments of the society. Lower castes had to serve the upper castes without having any say and grievance redressal mechanism.

Concept of Protective Discrimination

This had been the foundation of the policy of providing reservation to the have-nots. The concept of ‘Protective Discrimination’ which emanates from the provisions of Article 15 (4) is the foundational principle of reservation in India. The principle also derives strength from few other provisions such as,

Article 17 which abolishes untouchability and makes its practice an offence punishable under law. Article 46 promotes educational and economic interests of the weaker sections. Similarly, Article 16 and 335 provide for preferential treatment in matters of employment in public services and Articles 330 and 332 provide reservation of seats in the Lok Sabha and State Legislative Assemblies. Although SCs and STs are defined in Article 366 (24), (25), the backward class has not been defined. Hence, who is a backward in India has been an issue of debate.

Commissions

The Kalelkar Commission in its report submitted in March 1955 had prepared a list of 2,399 backward castes or communities for the entire country of which 837 were classified as the ‘most backward’. The Commission considered the 1961 census data for assessment and related social backwardness of a class to its low position in the traditional caste hierarchy. It also considered women as a backward class. Provision was made for reservation of 70 per cent seats in all technical and professional institutions for qualified students of backward classes. The Commission recommended that special economic measures be taken to uplift the OBCs economically through such programmes as extensive land reforms, reorganization of village economy, Bhoodan movement, development of livestock, dairy farming, cattle insurance, bee-keeping, piggery, fisheries, development of rural housing, public health and rural water supply, adult literacy programme, etc.

In 1979, the second Backward Class Commission, popularly known as Mandal Commission was set up in 1979 which submitted its report in December 1980. The Commission said that 52 per cent of the country’s population comprised OBCs. It initially argued that even the proportion of reservations in public services for backward classes should match the figure of 52 per cent. However, as this would have gone against the earlier judgement of the Supreme Court of India which had laid down that reservation of posts must be below 50 per cent, the proposed reservation for OBCs had to be fixed at a figure, which when added to 22.5 per cent for SCs and STs, remains below the cap of 50 per cent. In view of this legal constraint the Commission was obliged to recommend a reservation of 27 per cent only for backward castes. The implementation of the report of Mandal Commission create much hue and cry and large scale protests were made across the country. This aggravated the ongoing debate and dispute over the policy of reservation.

The Supreme Court of India in Indra Sawhney Vs. Union of India (1992) Supp. 3 SCC 217 directed the Government of India, State Governments and Union Territory Administrations to constitute a permanent body in the nature of a Commission or Tribunal for entertaining, examining and recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the list of OBCs. Pursuant to the direction of the Supreme Court, the Government of India enacted the National Commission for Backward Classes Act, 1993 (Act No. 27 of 1993) for setting up a Commission at National Level viz. “National Commission for Backward Classes” as a permanent body. The Union Government in April 2017 introduced the Constitution (123rd Amendment) Bill to create a National Commission for Socially and Educationally Backward Classes. The proposed commission shall be granted a constitutional status and will hear the grievances of socially and educationally backward classes, a function discharged so far by the Scheduled Castes Commission.

Rationality of reservation

The Supreme Court in M.R. Balaji Vs. State of Mysore AIR 1963 SC 649 held that protection through discrimination is essential for a just social order. However, it also held that backwardness under Article 15(4) must be social and educational, not either of the two. The debate over reservation despite its constitutional rationality for creating an egalitarian and just social order, has been primarily based on the ground that backwardness in India is decided on caste basis. It is pertinent to mention here that the Supreme Court in P. Rajendran Vs. State of Madras AIR 1968 SC 1012 held that reservation only on the ground of caste is not valid but it should also be considered that a caste is also a class of citizens and if a caste as a whole is socially and educationally backward, reservation may be granted. The Apex Court also said that other criteria may include economic conditions and occupation. Likewise, the Court in Indra Swahney case (popularly known as Mandal Commission Case) held that ‘class’ or ‘classes’ in Articles 15 (4) and 16 (4) are not to be construed in Marxist sense. What is important here is that India being a constitutionally socialist state does not have social stratification on income status hence unlike capitalist states, classes are not prevalent in India. The very notions of lower, middle and higher classes are essentially groups of people divided due to income inequalities. Since our society is stratified on caste basis, as said earlier also, it is generally considered that there is a caste in class and a class in caste in India.  According to the court in Indra Swahney case, caste may be the most dominant factor to determine backwardness but definitely not the sole factor. Therefore, economic condition of a group/class shall also be taken into consideration. The Court in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission AIR 2007 SC 3127 and also in Mahesh Gupta Vs. Yashwant Kumar Thirwar AIR 2007 SC 3136 has classified reservation into two categories on the basis of the source of discrimination, such as

  1. Vertical: Reservation to those classes that had been discriminated due to the structural factors prevalent in the socio-cultural milieu, such as caste, culture etc., for example, SCs, STs, OBCs, etc. This is to be provided under Article 16(4) of the Constitution.
  2. Horizontal: Reservation to those that are discriminated on certain external or functional factors such as disabilities. This is to be granted under Article 16(1) of the Constitution.

As regards women, the Court in Anil Kumar Gupta Vs. State of U.P. (1995) 5 SCC 173 held that reservation for women is a special reservation. In fact, this derives strength from the provisions under Article 15(3).

Conclusively, it is to be pointed out here that the debates on the issue of reservation shall not be considered rational on the grounds of constitutional principle of egalitarianism which believes in the equitable distribution (that is on the basis of contribution or requirement) of resources. This is because such principles lay the foundation of a welfare state which delivers social, economic and political justice. However, in a multi-party democratic politics in India, it is almost certain that various issues would very often be politicized. Especially, in the post-liberalisation period when market has taken the driver’s seat, a competitive environment is also noticeable in politics likewise in economy. This competitive politics is characterized by consumerism and individualism too. These have created an environment in which most of the regional and sometimes even the national parties do not refrain themselves from taking undue political advantage of various issues, obviously reservation remains the most important among them.

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