India should go for Reservation only on economic basis

Lalit Shastri

Chairman of the Constitution Drafting Committee BR Ambedkar

“Equal protection of Law”, guaranteed by the Constitution, has been explained by Government of India by pointing out that “among equals, the law should be equal and equally administered. That like should be treated as like. Or in other words, persons differently circumstanced need not be treated in the same manner.”

In India, “Equal protection” thus is a guarantee of equal treatment of persons in “equal circumstances” permitting differentiation in different circumstances……

In this way the Indian society has been divided through political machinations and reckless legislation into classes that shall never merge and leave no room for creating a homogenous society.

“We the people” will have to rise and elect the requisite majority in Parliament so that the Constitution could be amended to ensure social justice on economic basis. There cannot be social justice only by blanket treatment of a section of population, – the Scheduled Castes, Scheduled Tribes and Other Backward Categories – as “backward”. Also providing for additional 10 percent quota for the economically weaker sections among the general category neither ensures social justice nor helps in speedy progress of the nation.

To address the stiff opposition to this, it was on 7 January 2019, that the Union Council of Ministers presided by Prime Minister Narendra Modi approved a 10% reservation in government jobs and educational institutions for the Economically Weaker Section (EWS) in the General category. The cabinet decided that this would be over and above the existing 50% reservation for SC/ST/OBC categories.

Thereafter, the Constitution (One Hundred And Twenty-Fourth Amendment) Bill, 2019 was passed to institutionalise 10% additional quota for the Economically Weaker Students among the General category students.

Question arises, why continue to bracket the Indian Society into such narrow and outdated categories, when only the economic criteria matters and the concept of castes is a matter of history.

The present system does not differentiate between the creamy layer vis-a-vis the SCs and STs. It also discounts the concept of social mobility and allows only a miniscule sections among the reserved category to corner the benefit of reservation.

Reservation should be aimed at uplifting the socially weaker and most deprived sections of society. Seven decades after India became Republic, it is high time we go for a comprehensive census and survey to identify the most deprived sections and their special circumstances. While there are many socially deprived tribes and castes, the problem is reservation is being cornered by a few amongst them like the IAS officers, whose progeny get the advantage of reservation in perpetuity. Reservation should not go beyond one generation. Also those availing reservation should not compete for general quota as this is discriminatory.

At a broader level, we should not ignore the plight of those who compete for jobs and admissions in educational institutions purely on merit. Even under the present reservation regime, till we don’t introduce reservation only on economic basis, there is a need to cap reservation at 50 percent and this should be done by amending the Constitution without leaving any room for ambiguity. It is also important that we enforce 50% quota in all States and the High Courts should take suo moto cognisance if State Governments breach the 50 per cent ceiling.

The Constitution has institutionalised and legitimised the caste system by shrouding a number of castes and classifying them as backward class. People should understand this and build a mandate for reform.

The 77th Constitutional Amendment was made to amend Article 16. In article 16 of the Constitution, after clause (4), the following clause has been inserted:

“(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 the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

Article 335 of the Constitution originally read as under:

“ The claim of the members of the Scheduled castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of the State.”

The 82nd Amendment Act, 2000, amended the Article 335. The background for the amendment was that the Supreme Court in the case of S.Vinod Kumar Vs. Union of India had held that the various instructions of Government providing for lower qualifying marks/lesser standard of evaluation in matter of promotion for candidates belonging to SC/ST are not permissible in view of the provisions contained in Article 335. In view of this decision the various orders regarding lower qualifying marks/standard of evaluation for SC/ST in the matter of promotion were withdrawn by the Government with effect from 22 July 1997. However, the Parliament once again restored the relaxations and concession in promotion and the following proviso to Art.335 were added:

“Provided that nothing in this Article shall prevent in making of any provisions in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in maters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.

In pursuance of this enabling proviso of Art.335, all relaxations and concession that were withdrawn earlier with effect from 22 July 1997 were restored with effect from 3 October 2000 {DOPT’s O.M.No.36012/23/96Estt.(Res.)-Vol.II dated 3/10/2000}.

Article 16Clause (4-A) states: Nothing in this article shall prevent the State from making provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes, which in the opinion of the State are not adequately represented in the service of the State.

Clause (4-B) states: Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year (Constitution 81st Amendment Act, 2000).

In the Indra Sawhney’ case, Supreme Court held that reservation in promotion is unconstitutional but permitted reservation, for Scheduled Castes and Scheduled Tribes to continue for a period of five years(From 16.11.92). Consequent to this, the Constitution was amended by the Constitution (Seventy-seventh Amendment) Act, 1995 and Article 16(4-A) was incorporated. This Article enables the State to provide for reservation, in matters of promotion, in favour of the Scheduled Castes and Scheduled Tribes. The fact that the words “Backward class” used in Article 16(4) have been instituted in Article 16(4-A) by the words “SCs & STs”, itself precludes consideration of making reservation in promotion in favour of any other category of citizens.

It was only on technical grounds that on 5 May 2021, the Supreme Court of India passed the order underscoring that no “extraordinary circumstances” were made out by the Maharashtra Government in granting separate reservation of Maratha Community by exceeding the 50 per cent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit “without there being any extra-ordinary circumstances” clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires, the Apex Court said.

The people of India should be united, cutting across all barriers of caste and categories. They should be told not to succumb to narrow caste politics and to remain vigilant against political parties that treat them as vote banks.

It is time to build a nationwide people’s movement so that the voters elect their representatives for the next Parliament by giving them the mandate to fulfill the hopes and aspirations of the economically deprived on priority while they play their role as law makers for the all-round growth and development of the country and the prosperity of the people of India.

Postscript:

In India, there are also reserved constituencies in both Parliamentary and State Assembly elections. Citizens from the General category have the voting right but are not eligible to contest in these constituencies. This system was introduced by the Constitution of India in 1950 and was supposed to be in place for the first 10 years. However, it has been stretched continuously every ten years. Under the 104th Constitution Amendment, this reservation has got extended until 2030 and can be extended further with another constitutional amendment. The people of india will have to rise and build a consensus. We cannot perpetually crush the potential of leadership at the grass root level by denying those from the general category the right to represent their constituencies in Parliament and State Assemblies.

What also needs to be shelved once for all is the most divisive and discriminatory “Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989”. Let there be One Nation, One People, and One Criminal Procedure Code.