Lalit Shastri

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Question arises, why continue to bracket the Indian Society into such narrow and outdated categories, when only the economic criteria matters and the concept of castes is a matter of history.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

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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.