Reservation Policy and Rationale for Reservation
In light of the historically accumulated backwardness of the backward classes and the
need to bring them at par with the rest of the society, constitution provided for protective discrimination. Protective discrimination is not an exception but integral to the Right to Equality. While the SCs and STs got the benefit of reservation from the state and central governments since the inception of Indian Republic, the OBCs could get the benefits of reservation in central services much later in 1993. No reservation in legislative Representation is provided to the OBCs.
The reservation is leveling process, an attempt to extend sure helping hand to the weaker sections to enable them to attain the level of development already attained by the advanced sections of the society.
One of the unique features of our constitution is its emphasis on the principal of equality and corrective justice. It is present in the Fundamental Rights and chapter containing Directive Principles of State policy. The preamble includes among the objectives of the Indian State, Justice- Social, Economic and Political, Equality of status and opportunities and dignity of individual. To realize the goal of an egalitarian society, keeping in mind the backward conditions of the backward classes, the constitution makers made special provisions for the upliftment of the backward classes. The special provisions are in the form of protective discrimination. The policy of reservation is an instance of protective discrimination.
These provisions were aimed at correcting historical injustice, and giving helping hand to those who have been discriminated and exploited throughout the historic period. Over the years, the caste system developed into an elaborate system to maintain socio-economic equalities in the society. Individuals born in and belonging the lower castes and the outcastes suffered from many disadvantages and were oppressed and exploited by the upper castes. The condition of the outcastes (Dalits) was particularly pathetic. The practice of untouchability epitomized their conditions. The scheme of reservation was to provide opportunity to the individuals from these backward castes to rise upto the level of other section of the society. In political philosophy it is known as ‘corrective’ or ‘protective justice’. The aim was to provide a platform (of reservation) from which the lower classes and castes could advance at a faster pace.
Before we discuss the policy of reservation and its constitutional provisions, let us briefly look at the constitutional provisions relating to the backward classes.
Ø Articles 38 and 46 in the chapter of Directive principles, enjoin upon the state the duty to strive for the welfare of the people in general and the backward classes in particular. Article 38 states: 1) The state shall strive to promote the welfare of the people by securing and promoting as effectively as it may a social order in which Justice — social, economic and political shall form all institutions of national life;
2) The state shall in particular, strive to minimize the inequalities in income, and endeavor to eliminate the inequalities in status, facilities and opportunities not only amongst individuals but also amongst group of people residing in different areas and engaged in different vocations.
Ø Article 46 stipulates: “The state shall promote with special care the educational and the economic interest of the weaker sections of the people and in particular, of the Scheduled Castes and Tribes and shall protect them from injustices and all forms of exploitation.”
The policy of reservation is based on the principle of protective discrimination. Protective discrimination in favour of the backward classes was felt necessary by the constitution makers because of the realization that equality of opportunity alone would not suffice to bring the backward classes at par with the rest of the society.
Equality of opportunity in absence of equality of conditions would result in deepening of inequality instead of promoting equality. One must note here that the provision of protective discrimination is not an exception to but integral to the Right to Equality.
Reservations for SCs and STs:
The constitution recognizes three categories of people as backward classes. In this section we will deal with the provisions relating to the SCs and STs. The constitution provides for three types of reservations for the SCs and STs.
These are (1) reservation of jobs in government services and in public sector, (2) reservation in educational institutions, and (3) reservations in legislative representations.
Under Articles 16(4), 320(4) and 335, 15% and 7.5% of the jobs are reserved at all levels in the public services for the SCs and STs respectively.
Article 16 (4) provides that the State may reserve any post or appointment in favour of any backward class of citizens who in the opinion of the state are not adequately represented in the services under the state.
This reservation however, must as far as it may be, consistent with the maintenance of efficiency of the administration (Article 35).
Article 15(4) deals with the reservation of seats in the educational institutions. Article 15(4) states: “Nothing in Article 15 or 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 Scheduled Tribes.” Accordingly, the Union and the State governments have reserved seats in all educational institutions maintained by public money. Moreover, qualifications for admission have also been relaxed for the SCs and STs so that they can get access to educational opportunities.
Articles 330 and 332 provide for reservation of seats in the Lok Sabha and State Legislative Assemblies. 78 seats for the SCs and 38 seats for the STs are reserved in the Lok Sabha. In State Legislative Assemblies 540 and 282 seats are reserved for SCs and STs respectively. Moreover seats are also reserved in the Panchayati Raj institutions.
Reservations for the OBCs
As we have already noted, the task of specifying and identifying other Backward Classes (OBCS) was left to the union and state government. In many States where the backward classes movement was strong, such as in Tamil Nadu, Andhra Pradesh, Kerala, Gujarat, Bihar, to name a few, the state governments have reserved jobs at all levels in the public services and seats in educational institutions.
The Union government, however, took a very long time in deciding to provide reservation to the OBCs in the central services. The Union government had as early as 1953 appointed Kalelkar Commission under Article 340. The Commission submitted its report in 1956, but its recommendations were not implemented by the Union government.
The second Commission under Article 340 was appointed by the Janta Party Government in 1978. This Commission known as Mandal Commission submitted its report in 1982. It identified 3943 castes as OBC and recommended 27% reservation in government and semi government jobs and admission to educational institutions.
Recommendations of the Mandal Commission (1980):
The Mandal Commission submitted its report in 1980 with the following recommendations
1. It recommended reservation of 27 percent of posts in favour of socially, educationally and economically backward castes (OBCs)
2. These 27%, when combined with 22.5% of posts of Scheduled Castes (dalits and Scheduled Tribes (adivasis), already in force, will result into the total of 49.5%
3. Candidates belonging to the OBCs, who are selected and appointed on the basis of merit in an open Competition, should not be adjusted against their reservation quota of 27%.
4. The aforesaid reservation should also be made applicable ever for the purpose of promotion at all levels, with the same quota.
5. The reserved quota of posts, if remained unfilled, should be allowed to be carried forward for a period of three years and thereafter de-reserved.
6. Relaxation in the upper age limit for direct recruitment should be extended to the candidates of other Backward Classes (OBCs) in the same manner, as in the case of Scheduled Castes (dalits) and Scheduled Tribes (Adivasis)
7. A roster system for each category of posts ought to be maintained by the concerned authorities in the same manner, as currently maintained in respect of Scheduled Castes (dalits) and Scheduled Tribes (adivasis)
8. The aforesaid scheme of reservation should be made applicable also to all posts in public sector undertakings, private sector undertaking, that receive financial aid, in any form, from the Government and to the universities, colleges, and schools receiving govt. aid.
9. The commission recommended formulation and introduction of an intensive programme for adult education in selected areas, thickly populated by members of OBCs.
10. Finally, the Commission recommended establishment of residential schools for backward class students in these areas.
On 13th August 1990 the Union Government headed by V.P. Singh issued an office memorandum extending reservation to the OBCs on the lines recommended by the Mandal Commission. Soon thereafter, widespread protests were staged and widespread anti- Mandal agitations and riots broke out in the different parts of the country. Writ petitions were filed in Supreme Court and many High Courts questioning this measure.
On June 21, 1990 P.V Narsimha Rao formed the Government and introduced another 10% reservation of posts exclusively for economically backward classes of citizens in Sept, 1991. (10+27+22.5=59.5%)
On October 16, 1992, the nine members Constitution Bench of the Supreme Court delivered a historic judgement in the ticklish issue of job reservation in Government services, upholding the basic principle of reservation for the Socially and educationally backward classes.
Supreme Court Verdict:
The following are the main points of the Supreme Court Verdict:
a) 10 per cent reservation for other economically backward class, under the amended notification, issued by the Narsimha Rao Government on Sept., 1991 was struck down.
b) Total reservation cannot exceed 50 per cent for both SC’s and ST’s and OBC’s.
c) No reservation in promotions.
d) The Centre was given four months to spell out measures for exclusion of advanced backwards and inclusion of genuine backward classes.
e) The State Governments were given four months for inclusion into, or exclusion from, the list of backward classes.
f) The socially backward non-Hindus, like Christians and Sikhs were entitled to get reservation.
g) Approval of the Parliament for reservation notification is not required.
h) The criteria, adopted by the Government can be challenged in the Supreme Court only.
i) The judgement directed that job reservation for socially and educationally backward classes was restricted to employment alone and not for promotion.
The Supreme Court examined the issue and permitted the Union Government to reserve 27% of the jobs for the OBCs subject to the exclusion of the ‘creamy layer’ among the OBCs.
Ramanand Prasad committee was set up by the Union government to identify the B. Once it had done its job, the government executed the order of 13th August 1990 in September 1993.
Thus, we can see that it took nearly forty years for the union government to provide the benefits of reservations to the OBCs. It also took as much time to accept caste as a valid basis for the identification of socially and educationally backward classes. We must also note that benefits of reservation to the OBC apply only to government jobs and entry into educational institutions but no seats have been reserved for the OBC in Lok Sabha, and State Legislative Assemblies — a benefit which has been given to the SCs and STs.
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