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Anoop Swarup

I have tried to look up at reservations in India from a very dispassionate and impartial stance away from any political discourse that rages in the country. The Wikipedia sets out, ‘Reservation in India is the process of setting aside a certain percentage of seats (vacancies) in government institutions for members of backward and under-represented communities (defined primarily by caste and tribe’. There is no doubt that Reservation in our country is a form of affirmative quota-based action. Reservation is governed by constitutional laws, statutory laws, and local rules and regulations. Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) are the primary beneficiaries of the reservation policies under the Constitution – with the object of ensuring a level playing field.

Let us very briefly refer to the caste system which existed in India from 1500 BC to 1952 AD when it was formally abolished in the Constitution of India. As we know the Hindus for centuries were divided on caste lines on work ethics later degenerating with the Brahmana, Kshatriya and the Vyasa discriminating against the Shudras who were treated as untouchables. A brief look at the history of reservations in India will take us to 1908, when reservations were introduced in favour of a number of castes and communities that had little share in the administration by the British who took the cue from the erstwhile Indian States and rulers. The Communal Award in August 1933 of the then British Prime Minister Ramasay Macdonald provided the highly controversial separate representation for Muslims, Sikhs, Christians, Anglo Indians Europeans and Dalits where seats to be filled by election from special constituencies in which voters belonging to these depressed classes only could vote.

This was fiercely opposed by Mahatma Gandhi, was supported by many minorities including Dr B R Ambedkar who later agreed for a single electorate for all Hindus under the Poona Pact.

The post independence era in India from 1947 was eventful from a sociological perspective as untouchability was declared as a crime and India was declared as s socialist state. The various states in India do have domicile reservation ranging from 50% to 85% in addition to the minority religious institutions such as for sikhs, christians, muslims, Jains etc who have their own reservations ranging from 30% to 50%. The reservation was formalised in 1982 in the Constitution for the Scheduled Caste and the Scheduled Tribes with specified 15% and 7.5% vacancies in public sector and government aided educational institutions s has been formalised. In the 1990s the recommendations of the Mandal Commission’s 12 year study were implemented and the reservation percentage was raised to 49.5% by inclusion of additional 27% quota for the Other Backward Classes, also subsequently relaxing 5-10% of aggregate marks, 3-5 years of age relaxation and exemption from tuition fees for admissions to various government institutions. In 2006 number of castes in Backward class list went up to 2297 an increase of 60% from community list that was prepared by Mandal commission.

The Government of India also gave 5% reservations to physically challenged persons with 40% or more disabilities and in a momentous decision in 2010 women were given one-third reservation in gram panchayats, the local self government and the municipal elections.

Recent research on the quota system for women has revealed that it has changed perceptions of women’s abilities, improved women’s electoral chances, and raised aspirations and educational attainment for adolescent girls. Also under the Right to Education Act both in government and private aided schools by mid 2012, 25% reservation was provided to reserved category children. Presently, vide provision contained in Article 330 of the Constitution of India read with Section 3 of the Representation of People Act, 1950.out of 543 seats in India’s parliament, 84 (15.47%) are reserved for SC/Dalits and 47 (8.66%)for ST/Tribes. Allocation of seats for Scheduled Castes and Tribes in the Lok Sabha are made on the basis of proportion of Scheduled Castes and Tribes in the State concerned to the total population.

Let us look at some of the unintended consequences of reservations in both the higher educational institutes and in government as relaxations do result in:

• Lower aggregate percentage both in academics and competitive exams for the reserved categories thereby undermining the principle of meritocracy;
• Despite the financial and social status of those having gained already, do continue to take advantage of the reservation for next few generations and undermine the opportunities for the other have nots and underprivileged among their own scheduled castes and scheduled tribes;
• The creamy layer does become creamier and the downtrodden become more worse off;
• The other unreserved and even general category communities have also of late started demanding reservations such as Gujars, Jats, Seers, Patels and the like;
• The lack of a substantive economic criteria in the reservation policy results in even the well to do communities taking unsolicited advantage irrespective of their social and economic status thereby depriving those really in need.
• The very aim of a cohesive society gets defeated as the existing reservation policy does catalyse further societal divisions exacerbated by the political and communal forces that thrive in a democratic polity of India.
• The very aim of development in a harmonious society through investments for innovation, creativity and meritocracy gets negated in a society pulverised by divisions on caste lines.
• Recent research on the quota system for women has revealed that it has changed perceptions of women’s abilities, improved women’s electoral chances, and raised aspirations and educational attainment for adolescent girls.

A brief review of the Constitution of India and the ratios set by Courts in India merits a discourse. Article 16(4) states “Nothing in [article 16] 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.” Article 46 of the Constitution states that “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”.

The Supreme Court of India ruled that reservations could not exceed 50% as it would violate equal access guaranteed by the Constitution and put a cap on reservations. In a significant decision the Sachar Committee commissioned to prepare a report on the social economic and educational condition of the Muslim community in India pointed out that instead of making claims and promising reservations to win elections the government should focus on basic issues and governance.

The issue of whether religion-based quotas are permissible under the Constitution is now before a Constitution bench of the Supreme Court. Interestingly the Andhra Pradesh High Court in May 2012 quashed the sub quotas being followed by various states to point out that the same is carved out only on religious lines and not any intelligible basis. Supreme Court, in its 16 November 1992 judgment in the Indra Sawhney case, ruled that reservations in promotions are unconstitutional, but allowed its continuation for 5 years as a special case. In 1995, 77th amendment to the Constitution was made to insert clause (4A) to Article 16 before the five-year period expired to continue with reservations for SC/STs in promotions. Clause (4A) was further modified through the 85th amendment to give the benefit of consequential seniority to SC/ST candidates promoted by reservation. The 81st amendment was made to the Constitution that inserted clause (4B) in Article 16 to permit the government to treat the backlog of reserved vacancies as a separate and distinct group, to which the limit of 50 percent ceiling on reservation may not apply. The 82nd amendment inserted a provision in Article 335 to enable states to give concessions to SC/ST candidates in promotion. The validity of all the above four amendments i.e. 77th, 81st, 82nd and 85th was challenged in the Supreme Court through various petitions clubbed together in M Nagaraj & Others vs. Union of India & Others, mainly on the ground that these altered the Basic Structure of the Constitution. On 19 October 2006, the Supreme Court upheld these four amendments but stipulated that the concerned state will have to show, in each case, the existence of compelling reasons which include backwardness, inadequacy of representation and overall administrative efficiency, before making provisions for reservation. The court further held that these provisions are merely enabling provisions. If a state government wishes to make provisions for reservation to SC/STs in promotion, the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class. Recently the Supreme Court made an important point about positive discrimination in India.

Quashing the government’s decision to include Jats in the OBC category, Justices Ranjan Gogoi and Rohinton F. Nariman have stated “An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the state.”

Before we close any discussion on the reservations in India, let us quickly have an overview on the argument in favour and in against affirmative action. As for in favour, let us consider those communities that have for ages suffered substantial, compelling, self perpetuating and pervasive disadvantage. Considering the mechanics of social power in our country that transcends into political, cultural and economic power perhaps external intervention may be necessary to break the vicious cycle. There appears to be more of an argument against affirmative action. American economist, social and political commentator, Thomas Sowell had identified some negative results of race-based affirmative action in a book, ‘published at Yale University in 2004 ‘Affirmative Action Around the World: An Empirical Study’ where he surmises that affirmative action policies encourage non-preferred groups to designate themselves as members of preferred groups so that they become primary beneficiaries of affirmative action for undue advantage of preference policies. Also and more importantly caste based reservations tend to benefit primarily the most fortunate among the preferred group often to the detriment of the least fortunate among the non-preferred groups.

Moreover they reduce the incentives of both the preferred and non-preferred to perform at their best. The consequence is a net losses for society as a whole and for the target community in particular as also causing increased animosity towards the intended preferred groups. According to ‘mismatching theory’ now considered as a definitive approach in promoting meritocracy instead of mediocracy in Europe and America, affirmative action often places an individual in a college or a job that is too difficult, and thus increases the individual’s chance of dropping out or succumbing to failure. Thus, affirmative action hurts its intended beneficiaries, because it increases not only their dropout rate but in perpetuating social ostracisation. Evidence in support of mismatching theory was reported by Gail Heriot, a law professor at the University of San Diego while working as a member of the US Commission on Civil Rights, in an article published in the Wall Street Journal on 24th, August 2007. The article reported on a 2004 study on fewer black attorneys conducted by UCLA law professor Richard Sander later published in the Stanford Law Review.

Whether we should have affirmative action is as much a difficult question as the how of it. As discussed earlier Poona pact was never about transcending caste. No wonder we have inadvertently perpetuated the caste myth through the crude, unimaginative and costly approach to reservations. Increasing the social salience the approach causes expressive harms to its ostensible beneficiaries. No wonder that the resentment both for and against the beneficiaries increases, and existing prejudices as also the past caste based stereotypes get reinforced. Based on serious sociological evidence we should target the benefits by prioritising the weakest members of a weak group. Better focus and neutral criteria, such as living standards, school attended, parents’ occupation, education, family size, sibling education, place of residence, use of Mahatma Gandhi National Rural Employment Guarantee Scheme, and so on. In India many have arguably presented a case where only India and Bharat exist, the former being the have’s as they send the children to English medium schools while the later, the have-nots, predominately the poor amongst all castes and classes. Apparently a new social caste is emerging where there is no level playing field as every opportunities is open only for the elite English speaking refined global Indians. Simply, put the argument for caste-based affirmative action prevents us from transcending the very stigma attached to a caste and its supposed objectives. Indeed what we need to change is our damaged school education system with utmost urgency to bring a level playing field for real freedom and dignity for all irrespective of caste, colour, creed, sex or religion.