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With the recent agitation of Jats in Haryana and Patels in Gujarat demanding for Other Backward Class(OBC)reservation and tremendous pressure from Gujjars in Rajsthan for ST status, requires a relook of the caste based reservation policy in India. Reservation policy has emanated many controversies, discussions, and riots type agitations in India. Some are in favour of and others are against the policy. The antagonists argued that the policy, especially the caste-based reservation cannot improve the condition of poor masses in the country. They further argued that the policy contradicts the principle of secularism rather than uplifting the weaker communities in the country.
Reservation is given on the following basis:
Caste:- It is very peculiar to India as large number of lower castes suffered long by the hands of the upper castes thus to bring them to the mainstream so that they can become partners in the upliftment and betterment of country reservation is given on the basis of castes. The principal category of castes includes Scheduled Caste and Scheduled Tribe. Also there is one more category called as OBC which is not the principal category (as seen earlier no political reservation for OBC) but has received the advantages of reservation.
Religion:- In few states like Andhra Pradesh, Kerala there is provision for reservation on the basis of religion.
(iii) Domicile:- In some states in few areas posts are reserved for the domicile of that state.
(iv) Gender:- For women few seats are reserved in some educational institutes and in some State services [Under Article 15(3)].
Reservation as a tool to uplift the Marginalized
Reservation is a form of affirmative action whereby a percentage of seats are reserved in Parliament, State Legislative Assembly, Central and State Services, Public Sector Units and in all Public and Private Educational Institutions except in the Minority and Religious Educational
Institutions for the socially and educationally backward classes of citizens. The Reservation policy in India is centered around the Constitutional framework for reservation. The Constitution of India provides three types of reservations, political, educational and employment. The political reservation is provided in the Constitution by reservation of seats in proportion to the numbers for the SCs and the STs in the Lok Sabha (The Lower House) in its Article 330, and in the Vidhan Sabha (The Upper House) in Article 332. These provisions do not exist for the OBCs, which indicate that the principal categories for the affirmative action are the SCs and STs according to the Constitution.
For the second, an implication exists in the constitutional provision – Article 15(4), which allows the state to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and STs.
For the third, the constitutional provisions as modified and simplified from time to time are the Article 16(4), Article 16(4A), Article 16(4B), Article 335, and Article 320(4). These articles provide explicitly for reservation in educational institutions for the backward classes and the authority of the state to make any required changes with time, as required.
Historical Background of Reservation as a practice in India
India was a country with highly rigid caste-based hierarchal structure, with ascending order of privileges and descending order of disabilities, which operated for about 3000 years. There was an overwhelming majority in the nation that was still backward – socially, economically, educationally, and politically. These victims of entrenched backwardness comprise the present scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC). Even though, these classes are generically the "Backward Classes," the nature and magnitude of their backwardness are not the same. After achieving independence from the British in the late 1940s, India became a democratic and egalitarian nation. It was imperative at that point to establish a code for the political, economic, and social structure. The Constitution, established in 1950, strove to do the same. Therefore special provisions were enacted in the Constitution to achieve a dynamic, democratic and egalitarian society. The policy the Constitution framers chose was of Reservation. It is in this backdrop we will understand the historical development of the policy of
Reservation in India from its origin to the modern time.
Pre Independence (Pre Constitutional)
The seeds for the principle of reservation were sown way back in 19th century India. The genesis was the British policy of Divide et Impera. The 1857 uprising had unnerved the British. But only for a while. Within two to three years of quelling it – that too with great ferocity – they set to work putting together a version of it that would suit their ends: the uprising was confined to just a few pockets; it erupted as a result of local misunderstandings; there was no national sentiment behind it; the leaders fought only for their feudal privileges etc. This version was even imbibed in the Indian mindset. Of course British did not stop at writing history books.
The British commenced a series of real political measures. The Bengal Army was disbanded as it had shown alarming solidarity with the revolutionaries. Brahmins had provided an ideological leaven thus the campaign of calumny against them was redoubled. But biggest of them all was that Hindus and Muslims had fought together this time round. Though there were cleavages between them. Officer after officer of British empire wrote and recommended to exacerbate the same.
Within this light the Indian Council Act, 1892 brought the concept of separate electorates to divide the unifying committee. Mr. B. R. Ambedkar wrote in his book, Thoughts on Pakistan, "The introduction of this principle is shrouded in mystery. It is a mystery as to why it was introduced so silently and stealthily."
Later Lord Curzon partitioned Bengal on the same religious line and in the behest that it would save the Muslims from a Hindu hegemony. Abid Hussain the prominent Muslim scholar reacted by saying, "It sowed the seed of division in the heart of the people that was one day to divide the whole country…", and history had shown how true the prophesy was. Now the British eye to divide the vast Hindu society too so that it was also not a threat to the empire.
With this object the 1911 census was orchestrated. The superintendents were instructed to enumerate castes and tribes that had been returned until now as Hindus but which could be differentiated like Sikhs etc. In this census the Sikhs were dragged out of Hindu fold and also Scheduled Castes were taken out of Hindu community. A separate group called "Animists" was created to take those tribes out of Hindus which do not follow the typical Hindu rituals.
These "Animists" were later in 1931 Census recorded as Scheduled Tribes. Hindus were divided in large chunks and Scheduled Castes and Scheduled Tribes were to be reported outside Hindus.
The British divided India into religions like Hindus, Muslims, Sikhs, Christians, Jews, Parsis, and into sects like Scheduled Castes, Scheduled Tribes, Arya Samajis, etc. British primed their band of delegates.
The last straw in this entire effort was the Communal Award. British suggested and announced infamous Communal award and thereby decreed separate electorates for the Scheduled Caste. Gandhiji had to commence fast unto death to overcome this British policy but had to concede to Yervada Pact, by which Congress voluntarily conceded reservations for Harijans in legislatures. This is how the reservations started under the Indian scene.
Post Independence (Post Constitutional)
With the object of making Indian society as a democratic and egalitarian society the framers of the constitution kept the policy of reservation so that the entire society can be joined in the mainstream. The reservations were, therefore, to be exceptions to the general rule. Moreover, the provisions by which these were allowed were crafted carefully to be just enabling provisions.
They were worded to confer no more than a discretionary power on the State. They did not cast a duty on the State to the effect that it must set apart such and thus proportion of seats in educational institutions or of posts in government services on the basis of birth. The provisions were written so as to obviate a challenge to the steps that the State may take to raise the downtrodden. They were not to confer a right on anyone. And the whole scheme was to be a temporary affair, a scheme made necessary by the circumstances of the moment.
What the framers Provided
The basic approach was specified in Articles 14, 15(1), 16(1) and 16(2). Article 14 guaranteed equality to all: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." That was the fundamental guarantee.
Article 15(1) made that guarantee specific in one particular:" The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."
Article 15(2) guaranteed equal access for everyone to public facilities like wells, restaurants etc.
Article 15(3) contained a proviso: it is important as it recalls the only categories for which the framers were prepared to countenance curtailment of equal provisions. Article 15(3) provided:
"Nothing in this article shall prevent the State from making any special provision for women and children." Notice again: the only categories for which special provisions were envisaged were women and children. In particular, notice that no exceptions were envisaged on the basis of castes.
Article 16(1) made the fundamental guarantee of equality contained in Article 14 specific in another particular, one that was particularly important in those days when job opportunities were
much more restricted than they are today, and governmental jobs were looked up to much more than is the case now. "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." Article 16(2) did for governmental employment what Article 15(1) did for a citizen's living in general: "No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State."
Article 16(4) contained a proviso, and again it is important as a reminder of what the framers of the Constitution envisaged. This clause provided: "Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."
Therefore to sum up what the Constitutional framers provided we may say: (a) The fundamental guarantee in every provision was of equality, of non-discrimination. (b) Caste was most consciously eschewed: the proviso to Article 15(1) spoke only of women and children ; Article 16(4) spoke only of "any backward class of citizens." (c) Where caste was mentioned, it was only to prohibit discrimination on grounds of caste. (d) Where 'equality' was made specific – in Article 16(1) in regard to employment under the State, for instance – the expression that was used was 'equality of opportunity', an expression that, has been buried deep under the rhetorical flourishes of progressives.
Also the Constitutional framers deliberately omitted word religion under Article 29, and also under Article 46 weaker sections are to be promoted by State with special care to Scheduled Castes and Scheduled Tribes. Finally the Constitutional framers kept the provision of reservation under the strict scrutiny of Article 335. Article 335 provided, "The claims of members of 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."
Conflict of Judiciary and Politics
Slowly the politician and statesman of the stature of Pandit Nehru, Sardar Patel eloped from the political scene of India and the politicians with little worth and standing occupied the scene. The politicians were not commanding the patronage of masses because of their ideal or policies and thus they started to widen the gulf on the basis on caste. They started the policy of caste appeasement and thus tried to vow their supporters not by development but by appeasing them and giving them the carrot of reservation.
This degradation started very early but its signs were seen after the Mandal Commission recommendations were implemented by the then government of Mr. V. P. Singh. Mandal Commission was given the duty to identify backward classes and to examine the desirability or otherwise of making provision for reservations of appointments or tests in public services.
Justice Kuldip Singh observed in Indra Sawhney case, "The most vital part of Term of Reference is wholly ignored by the commission." He further stated, "… the commission surveyed only 0.06% of the villages in the country." And further lamented, "… the entire exercise was clerical and drawing room exercises." And on such basis the reservation for OBC was fixed at 27% because as per the commission the OBC population is 52%. In total 3743 castes were identified as OBC. And with this case the conflict between Judiciary and Politics started.
The politicians because of vote bank politics and political pressure started adding more and more castes watch castes, within the framework of reservation forgetting the constitutional mandate that it is the backward classes that is to be protected not the castes. The courts started declaring these acts unconstitutional and then the politicians started amending the Constitution. And the game of cat and rat started which is taking place till date but in this lies not the folly but disaster as stated by Panditji in his letters to Chief Ministers in early sixties.
From M. R. Balalji to Indra Sawhney, the Supreme Court held that clause 16(4) was an exception to the fundamental guarantee provided to all citizens that they shall have equality of opportunity in competing for governmental employment. The court held, as Dr. Ambedkar had stated in this very context during debates of the Constituent Assembly, that an exception cannot be allowed to swallow the rule.
Hence the Court held, speaking generally, reservations should not exceed 50% of the jobs being filled. Tamil Nadu crossed this margin and gave 69% reservations which was declared unconstitutional by Madras High Court. Government went to Supreme Court but to no avail. Then Tamil Nadu Assembly unanimously passed a resolution requesting Central Government to intervene. Then on 13th July, 1994 all party meeting in Delhi was held and it was decided that Tamil Nadu will pass a bill for enabling such reservation and that bill will be placed in Ninth Schedule of the Constitution.
Another controversy was over the reservations in promotion. In Indra Sawhney, the Supreme Court held that reservations can be given only one time and there will be no reservations in promotion. But this again was undone by Parliament by amending constitution 77th time and enacting a new clause Art. 16(4A) for giving reservation in promotions.
Then the problem arose that the vacancies of reserved categories when carried over exceed the ceiling of 50%. So Constitution was amended 81st time and a clause (4B) was inserted in Article 16. Which stated that the vacancies carried forward and vacancies afresh shall not be considered together.
In S. Vinod Kumar v. Union of India, Supreme Court held that in the light of Article 335 efficiency of administration has to be maintained and standards could not be relaxed or waived to afford the protection of reservation. This made the Constitution to be amended 82nd time and a new proviso was inserted under Article 335 that standards can be relaxed to accommodate reservation.
Now the question came before court for consequential seniority. The rule was followed that a reserved candidate may be promoted on the basis of roster system prior to a general candidate, but as the general candidate is promoted he supersedes the reserved candidate who was his junior initially but was promoted earlier than him because of reservation policy, and the status quo that existed prior to promotion of reserved candidate will be maintained in terms of seniority. This made the constitution to be amended 85th time and in clause (4A) of Article 16 terms with consequential seniority were added.
This shows that the politicians have kept the merit on back burner and started giving priorities to reservation on the basis of caste which is dividing the entire country and is against the very principle for what the constitutional framers had kept this principle of reservation.
The debate on affirmative action in India is long and not always geared to the desired aim: creation of equality of opportunity. Just like Indian secularism, reservation system in India has always a different political aim to make the system more unequal than what it is. Indian secularism, rather than making the state independent of religion, is intended to provide special privileges to certain religious groups. Similarly Indian affirmative system is politically designed to provide restricted rights not equal rights to some chosen people.
The affirmative action in India has started perhaps by Vice-Roy Curzon in 1905 by banning the employment of Hindu Bengalis in the government services; the official argument was that they were too advanced and taking away job opportunity from others particularly the Muslims. Later it was extended in the military services by giving preferential treatments for Muslims and Sikhs branding them as martial races. Reservations in government jobs were introduced in 1918 in Mysore in favor of a number of castes and communities that had little share in the administration.
In 1909 and in 1919 similar reservation system was introduced for the Muslims in British India. In 1935, for purely political reason the British government had provided job reservation for the backward castes.
The real idea was to divide the population of India into several warring groups along religious, ethnic and caste lines by giving special rights so that future India would be divided and weak. A number of prominent politicians had acted as the agents of the British Raj to implement that line of action.
Equality of opportunity is the basis of a true democracy and as such affirmative actions are needed to equalize the opportunities among the people who are endowed differently. Even in the US, affirmative actions were promoted first by President Johnson since 1964 to promote American blacks, who were deprived of most opportunities. However, it was not a success.
The countries where it was most successful are Japan, the Soviet Union and other former socialist countries of East Europe along with Cuba and Vietnam. India should take a lesson from them to implement a proper affirmative action to equalize opportunity in our society.
Caste Politics, Social Movement with regard to Reservation Policy in India
Under the Indian scenario the characteristics of this failed system of Reservation are many. Reservations for Scheduled Castes (SC) in schools and government posts remain largely unfilled, whereas reservations for Other Backward Classes (OBCs) are generally filled to capacity. A 1997 study indicates that nationally preferential policies only benefit 6 percent of Dalit families. Moreover, the same study reported that "none of India's elite universities and engineering institutes had filled its quota for members of scheduled castes."
People from the scheduled castes and scheduled tribes continue to be absent from white-collar positions. For the country as a whole, members of the scheduled castes and scheduled tribes combined — did not receive as much as 3 percent of the degrees in engineering or medicine, though together they add up to nearly one-fourth of the population of India.
Is OBC Reservation a Political Gimmick?
Of course it is. The motives of the politicians in this game have been consistently unholy and motivated by a calculus of votes. But to blame politicians for it is like blaming a shopkeeper for wanting to make profit. This is the logic of market/electoral democracy: the fear of losing customers/voters makes a shopkeeper/politician serve the customers/citizens. The politicians who led the abolition of slavery or the end of Apartheid or the Indian nationalist struggle were not always motivated by lofty ideals. Like in market, in politics too, individual venality can contribute to collective good. In any case, whether something is right or wrong should be evaluated independent of who said it and why.
Justification of OBC Reservation
Sure, the OBCs did not face Untouchability and most of them did not suffer from the worst oppression of the caste system. But they have suffered from systematic disadvantage in accessing education and middle-class jobs. Look at its effect today: according to the National Sample Survey, out of 1,000 upper-caste Hindus in urban India, 253 were graduates. Among the Hindu OBCs, this figure was only 86 per 1,000. The picture gets worse if we look at post-graduate and professional degrees. Caste-wise break up from another study shows that access to higher education still reflects the traditional caste hierarchy: the rate of highly educated is 78 per 1,000 among the Hindu Brahmins, around 50 or plus for other 'twice born' caste Hindus, Christians and Sikhs (with the exception of Rajputs who now include many upwardly mobile non-dwijas), but only 18 for the OBC and even less for SC and ST.
The inequalities in the level of educational attainment of different caste groups are still unacceptably large. This situation is not an outcome of any natural differences in IQ of different caste groups or uneven desire to pursue higher education. These differences are principally an outcome of unequal opportunities. That is why the government needs to step into this.
Supreme Court on Mandal II (OBC Reservation)
The jinn that came out of the bottle with the announcement of reservation for OBC was kept in abeyance for some time on 29 March 2007 when the Supreme Court stayed the law providing for 27 percent reservation for Other Backward Classes (OBCs) in higher education institutions such as the IITs and IIMs for 2007- 2008.
This landmark order of the Supreme Court of India founded on timeless elemental principles of equity, natural law, natural justice (which does not exclude social justice) will be welcomed by all the enlightened people of India committed to the noble cause of eradication of untouchability and other forms of cruel discrimination practiced against the Scheduled Castes / Scheduled Tribes for centuries by all the other communities, definitely not excluding the so-called 'Backward Classes' who are being converted into scapegoats in the dirty and murky world of caste-based vote bank politics patented and perfected by various politicians.
By implication, the Supreme Court has made it abundantly clear to the Central government that they are not willing to buy the 'caste-based, caste-hatred' founded theory of the Mandal Commission that the vote-bank generated 'Backward Classes' can on no account be treated on par with the Scheduled Castes / Scheduled Tribes.
The Supreme Court passed the interim order on petitions challenging the constitutional validity of the Central Educational Institutions ( reservation in admission ) Act 2006. The Supreme Court rejected the government argument that reservation was not anti-merit. The Court also summarily rejected the absurd, aboriginal and abominable argument of the government of India that in the absence of Caste Data after 1931, there was no alternative to projecting the population proportion of socially and educationally backward classes and OBCs from the next best source the latest available census of 1931.
According to the Supreme Court, the policy of reservation cannot and should not be intended to be permanent or perpetuate backwardness. To quote the historic words of the Supreme Court in this context: 'Nowhere in the world do castes come up, classes or communities queue up for the sake of gaining backward status. Nowhere else in the world is there competition to assert backwardness and then to claim we are more backward than you.'
The Union Minister for Human Resource Minister Arjun Singh has as was to be expected reacted to the Supreme Court judgment by saying that the government would exercise all legal and constitutional options to implement the 93rd Constitutional Amendment that extends reservation for Other Backward Classes (OBCs). He has also brazenly refused to term the verdict of the Supreme Court as a setback.
Alternatives to Affirmative Action
The questions arise: are there better options than reservations or quotas in jobs and higher education? Don't these measures encourage the beneficiaries of affirmative action to designate themselves as members belonging to preferred groups? Don't these measures make those sections of society that historically have been discriminated against feel that they have been elevated due to preferential treatment or positive discrimination on the basis of group allegiance rather than individual merit? Won't the poor upper caste people suffer due to reverse discrimination in favor of affluent well–to-do lower castes in India? Won't they make the beneficiaries of the affirmative action lethargic or complacent? If the students coming from a backward class were to know in advance that they would be accepted by higher education institutions or jobs under the reserved category or preferential treatment, would they still strive hard to perform their best? Won't it aggravate further animosity if, despite reservation and preferential treatment, such students find students from the general category outperforming them?
Affirmative action in the name of race, caste or minority can have deeper psychological scars on the groups, according to who receives preferential treatment and who does not. Moreover, affirmative action in the name of diversity, has an ameliorating effect on both groups, preferred as well as non-preferred. Like mercy, it is "doubly blessed". It leads to less passion and resentment. It gives due weight to students' potential capabilities along with their realized capabilities reflected in high grades and scores on the basis of final examinations or common entrance tests. Under the new measures, once admitted, the costs of poor performance are borne to a greater extent by the beneficiaries of affirmative action themselves and to a lesser extent by others. Enhancing access, equity and diversity in higher education do not mean that all must be treated as equal or exactly the same. Nor does it imply equal or proportional representation in all areas of jobs, higher education and institutional operations.
It simply implies being systematically fair. Consideration for all on an equal footing requires that inequities, when they occur, should be justified by overall benefit and gains to all concerned and that they should be in the public interest. Some alternatives to affirmative action should also be devised to strike a balance between equity and equality, on the one hand, and individual gain and public accountability, on the other. Greater accuracy, creativity and autonomy in the appraisal of the qualifications of prospective students are required to serve the individual, institutional, national and international interests. It is imperative that universities and policy-makers focus on the criteria to be used for affirmative action.
They should ponder the issues, such as: Should affirmative action be used for the purposes of equity and justice or diversity and redistribution? Should it be used uniformly or differently for different groups and sub-groups? Should tests be used to stop misuse, overuse or in-egalitarian use of affirmative action? Should it be limited to access to higher education through positive discrimination, or should it also be supplemented with necessary financial support in the case of the needy? What should be the extent of affirmative action in each course or institution? What should be the duration of affirmative action? How should we find out the potential for higher education from amongst the lower strata of society? How can we avoid subjectivity and a biased attitude on the part of the recruiting authorities and faculty? How can we secure the support of the non-beneficiaries for affirmative action policies and practices? How do we quantify or record the benefits accruing from such policies? All such questions await honest answers and evidence based on research.
The government provides scholarship to SC students to attend school, but that is not enough: "Even when the government provides primary schooling free of charge, the costs of books and supplies may not be affordable by very poor people. For secondary education, rural students especially may not always find a school nearby, so that those whose parents cannot afford the costs of commuting or relocating — and paying for housing and boarding — have little realistic prospect of attending, regardless of preferential admissions policies."
Some Scheduled Castes do better than others with the system, raising the demand in some quarters for "quotas within the quota". A particular case in point are the Chamars, historically a leather-working (and therefore untouchable) caste. In the state of Maharashtra, the Chamars are among the most prosperous of the scheduled castes. A study found that they were 17 percent of the state"s population and 35 percent of its medical students. In the state of Haryana, the Chamars received 65 percent of the scholarships for the scheduled castes at the graduate level and 80 percent at the undergraduate level. Meanwhile 18 of the 37 untouchable groups in Haryana failed to get any of the preferential scholarships. In the state of Madhya Pradesh, Chamars were 53 percent of all the scheduled caste students in the schools of that state. In Bihar, just two of the 12 scheduled castes in that state–one being the Chamars– supplied 61 percent of the scheduled class students in school and 74 percent of those in college.
Therefore looking at such diversities some of the alternatives to affirmative action that have been suggested are using family income, education and social capital as criteria, ranking of the school last attended, ascertaining opportunity costs based on neighbourhood, convincing the non beneficiaries to believe in the fairness of the system, guaranteeing X% of seats to students from local schools allowing for low performance due to circumstances but not due to the lack of individual capabilities, motivation or determination, using modern psychological methods for ascertaining future potential even in the case of low credential applicants, allotting bonus points for various factors that have resulted in the loss of opportunity or poor performance, awarding bonus points for excellence in sports, co-curricular activities and community leadership or in compensation for physical or mental challenges, etc.
Also the creamy layers should be identified regularly and those castes which have got the advantages of reservations should be slowly and gradually removed from the list of reserved category.
For How Long??
What is the criteria for selection for reservation?
Snatching away the Fundamental Rights
Social Justice v/s Natural Justice
Is reservation not promoting inefficiency?
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