Reservation System in India

WHY IN NEWS?

Reservation in jobs and education is positive yet very controversial topic in India. There has been outcry, even from the affluent communities for extending the benefits of reservation in education and employment to them.

WHAT DOES RESERVATION SYSTEM SIGNIFY?

Reservation in India is the process of facilitating a person in education, scholarship, jobs, and in promotions who has category certificates. Reservation is an affirmative action. Reservation as a policy is pursued by the State to correct the historical injustice done to certain castes by the dominant communities in the society.

HISTORY:

• A caste-based reservation system was originally thought of by William Hunter and Jyotirao Phule in 1882. A form of it was implemented by Chhatrapati Shahuji in 1901.
• After India’s Independence, there were some major changes in favour of the STs, SCs and OBCs, mostly through constitutional means.
• Mandal commission and its recommendations added a new dimension to the reservation system in the country

CONSTITUTIONAL PROVISIONS:

• When our Constitution was framed, the makers of the constitution made a special provision with intention to provide equal opportunity to all the citizens within India. Original Constitution provided reservation only for quota in legislatures – that too only for 10 years until 1960 (article 334). Subsequent amendments to the constitution extended the period of reservation for quota in legislatures.
• Under Articles 15:
  • Article 15(3) empowers the state to make special provisions for women and children.
  • Article 15(4) empowers the state to make special provisions for advancement of Socially and Educationally Backwards (SEBCs) or SC/STs.
  • Article 15(5) empowers the state to make reservation in admission into education institutions including private schools or colleges whether or not aided by government, except for minority educational institutions.
  • Thus, Article 15(3), 15(4) and 15(5) forms the foundation of reservation in the country.
• Under Article 16:
  • Article 16(4): empowers the State to make a special provision for those backward classes who in the opinion of the State are not adequately represented in the service under the State.
  • Article 16(4-A) empowers the state to make reservation in Promotions also for SCs, STs and OBCs.
• Article 335: The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in making the appointments to services and posts in connection with the affairs of the Union or of a State.
• Article 330 and 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively
• Part XVI deals with reservation of SC and ST in Central and State legislatures
• Article 243D provides reservation of seats for SCs and STs in every Panchayat.
• Article 243T provides reservation of seats for SCs and STs in every Municipality.

The 103rd Constitution Amendment Act was recently enacted to provide 10% reservation in the matters of education (Article 15) and public employment (Article 16) to economically disadvantaged sections of the society by creating a new category “Economically Weaker Section (EWS)”.

The proposal to give 10 per cent reservation to the economically backward classes is a well-debated decision that has been long pending. In 1991, the P V Narasimha Rao led Union government did provide for similar reservation, but a nine-judge bench in Indra Sawhney (1992) struck it down. There have been similar efforts in states as well — Kerala government (2008) in admissions to certain higher education courses, the Rajasthan government (2008) and the Gujarat government (2016)

MANDAL COMMISSION:

• In 1978, Morarji Desai led government formed the Second Backward Classes Commission under the chairmanship of B P Mandal,  a former Member of Parliament.
• The commission’s major assignments were:
  • Determine criteria to define SEBCs
  • Recommend steps to be taken for their advancement
  • Examine extending reservations to them
• In 1980, the Commission submitted its report to the President. The Commission developed eleven indicators of social, educational, and economic backwardness. One of the indicators was that being considered backward by other castes or classes. Other criteria included nature of occupation, average value of family assets etc.
• The Commission generated an all-India “Other Backward Classes” (OBC) list of 3,743 castes and a more underprivileged “depressed backward class ” list of 2,108 castes
• The major recommendations were:
  • Reservation of 27 per cent jobs for those who do not qualify on the basis of merit.
  • Reservation of 27 per cent be made for promotions at all levels.
  • The reserved quota, if unfilled, should be carried forward for a period of three years and de-reserved thereafter.
  • Age relaxation for the backward classes should be the same as it is in the case of the SCs and the STs
  • A roster system should be prepared for the backward classes on the pattern of the roster system for SCs and the STs.
  •  The principle of reservation should be made applicable to all the public sector undertakings, banks, private undertakings receiving grants from the central- state governments, universities and colleges.
  • The government should make the necessary legal provisions for implementing these recommendations.
• In 1990, the VP Singh led government announced that they would implement the recommendations of the Commission, along with reservation of 10% government jobs for economically backward classes among the higher castes
• This move was challenged in the Indra Sawhney v Union of India case

INDRA SAWHNEY CASE:

• The 9 judge bench of the Supreme Court upheld the Mandal Commission’s 27 percent quota for backward classes, as well as the principle that the combined scheduled-caste, scheduled-tribe, and backward-class beneficiaries should not exceed 50 percent of India’s population.
• The court was of the view that economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16 of the Constitution. So the court struck down the 10% reservation in government jobs for economically backward classes among the higher castes
• The court also ordered to exclude Creamy layer of other backward classes from enjoying reservation facilities.

NAGARAJ CASE:

• In the years following the Indra Sawhney judgement, the government made four amendments of the constitution viz. 77th, 81st, 82nd and 85th to provide not only for reservations in promotion but also for consequential seniority on that basis
• These amendments were challenged in the “M Nagaraj and others vs. Union of India and others” case
• The court upheld the constitutional validity of the 77th, 81st, 82nd, and 85th Amendments.
• It, however, ruled that if the state wished to exercise their discretion and make a provision for reservation in promotions for SCs/STs, the State has to
  • Collect quantifiable data showing backwardness of the class
  • Inadequacy of representation of that class in public employment in addition to compliance of Article 335
  • Overall administrative efficiency is not obliterated by the new reservation.
• Also, even if the State has a compelling reason it will have to see that its reservation provision does not breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

FEATURES OF 103^rd CONSTITUTIONAL AMENDMENT ACT:

• The Act amends Article 15 of the Constitution, by adding the EWS reservation under clause 15(6). This enables the state to make special provisions for advancement of any economically weaker section of citizens, including reservations in private educational institutions.
• It amends article 16 by inserting a new clause 16(6) which enables the state to make provision for reservation in appointments, in addition to the existing reservations, subject to a maximum of ten percent.
• The Amendment Act aims to fulfill the commitments of the Directive Principles of State Policy under Article 46, to promote the educational and economic interests of the weaker sections of the society.
• ‘Economically Weaker Sections’ shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage
• Eligibility criteria:
  • Inclusion criteria: General category individuals whose family together earns less than Rs 8 lakh per annum, and who have less than five acres of agricultural land.
  • Exclusion criteria: Individuals whose families own or possess more agricultural land, or a residential flat of area 1,000 sq ft or larger, or a residential plot of area 100 yards or more in notified municipalities and 200 yards or more in areas other than notified municipalities, will not qualify.

BENEFITS OF NEW ACT:

• Around 55 million households may benefit from the 10% reservation
• Removes the stigma around reservation: Reservation has historically been associated with caste. By including upper castes under the sign of reservation, it dissociates caste and the stigma of reservation.
• Redefines reservation: Economic criteria could help a large number of poor ‘general category’ citizen avail the benefit of reservations.
• Help ease the tensions and agitations that have been going across states like Gujarat, Maharashtra and Rajasthan demanding reservation.

CONCERNS:

• It is not clear if the proposed reservation will apply vertically or horizontally:
  • Vertical reservations are special provisions that are intended exclusively for members of backward classes SC, ST, and OBC. These reserved positions are earmarked to the members in the form of a “set aside”. Horizontal reservations are the special provisions that are intended for other disadvantaged groups of citizens (disabled, women, etc.). They are provided as a “minimum guarantee”.
  • If run vertically, as is being contended by the government, the policy would breach the 50 per cent cap on reservation espoused by the Supreme Court in Indra Sawhney case
  • Running the policy vertically would jeopardize the right to equality under Article 14. An SC/ST/OBC poor would be restricted from claiming reservation under the EWS quota despite being both economically disadvantaged and socio-economically backward
• Conflict with basic structure doctrine:
  • The nine-judge bench in Indra Sawhney had ruled that reservation is a remedy for historical discrimination and its continuing ill-effects and not aimed at economic upliftment or poverty alleviation. Economic backwardness is to be on account of social backwardness.
  • But the introduction of economic criterion will however lead to the virtual deletion of Articles 15(4) and 16(4) from the Constitution. Since these articles form part of the basic structure doctrine, question remain whether amendments to these will pass the test of basic structure doctrine
• The policy bypasses the constitutional qualifiers for reservation:
  • As was highlighted by the Supreme Court through various verdicts, providing reservation must be done by demonstrating both “backwardness” and “inadequacy of representation”.
  • The qualifier of “backwardness” has been ostensibly addressed by the insertion of Article 16 (6). But “inadequacy of representation” has not been substantiated. Economic criterion cannot be the sole basis for determining the backward class of citizens. It needs to be shown by way of demographic data that the EWS are not adequately represented in the services of the state.

• Breach of 50% limit:
  • The present move may violate the cap of 50% on reservation set by the Supreme Court in Indra Sawhney judgement.
  • Though the govt. claims that the 50% limit is only for SC, ST and OBC reservations, whether or not this claim passes judicial scrutiny needs to be seen.
• Undermines the basic idea behind reservation:
  • By seeking to open up the reservation policy on an economic basis, the government can be accused of using what was meant to be an instrument of social justice as an anti-poverty measure like a safety net or a subsidy. The reservation system was never meant to eradicate poverty. It was meant to eradicate social inequality.
  • Also, it is clear from the Constitution that reservation can be for a caste or a class. In fact, caste is a social class and cannot be for individuals; the latest move is made for the individual.
• No alternative to lack of employment opportunities: Between 1990-91 and 2011-12, India’s public sector jobs actually decreased by 7% (from 19.06 million to 17.61 million) though our population increased by 30% to 1.2 billion.
• Conflicts with the fundamental rights:
  • In Jarnail Singh (2018), the Supreme Court defines equality as: “Persons situated similarly must be treated at par, and persons situated dissimilarly must be treated distinctly”. This was also the prime reason for carving out the “creamy layer” in SC/STs by holding that the “forwards” among them could not claim reservation, which was a right of the “backwards”.
  • The Rs 8 lakh-an-annum threshold proposed in the present bill is casting too wide a net, in a country where the per capita income is not even Rs 10,000-a-month. Based on Income tax data and NSSO report data, this income limit makes as many 95% Indians eligible for the new quota. If almost everyone is eligible for reservation, then the idea of reservation itself becomes pointless.
  • The net effect of the policy would be to constitutionally equate a rural BPL-family barely rummaging two-square meals-a-day, with a semi-urban middle-class family earning Rs 66,000 per month, thereby questioning the principle of right to equality.
• Impact on reservations to OBCs:
  • While SC and STs have been getting reservations in proportion to their populations, OBCs, who comprise 52% of total population, have been getting only 27 % in the central quota.
  • Till now the OBCs have been free to compete with others in the general category comprising about 50.5% which is not reserved.
  • The Bill seeks to exclude SC/ST and OBCs from this 10% reservation. With this new Amendment, their competitive pool could come down from about 77.5% (27% reserved and 50.5% general) to about 67.5% (27% reserved and 40.5% general)
• No surveys have been conducted nor is scientific data available on backwardness in the upper castes
• It will create complications with multiple requirements of documents and a layer of bureaucracy

WAY FORWARD:

• From the judicial perspective: An NGO, Youth for Equality, has already moved a petition questioning the validity of the act. However, only an 11-member bench can overrule Indra Sawhney. The validity of reservation on the basis of economic backwardness in the absence of social backwardness will depend on how many of the 11 yardsticks of backwardness laid down in Indra Sawhney for OBC reservation is satisfied by the Bill.
• From the social perspective especially in times when the economy does not seem buoyant, when jobs are not being created at the requisite pace in the private sector and are shrinking in the government sector, a quota for upper castes will only deepen existing resentments and create new ones — while not serving its stated purpose.
• There are no substitutes for the problem of worsening of job quality and informalisation of the existing workforce. A better option other than reservation would have been a provision of good-quality free higher education to those who are unable to access it and creating an enabling environment for better-quality jobs in private and public sector.
• There’s a need to rationalize quotas instead of expanding them further. However, this doesn’t mean that we change the very essence of reservations and make them about poverty alleviation. The latter has to be addressed through growing the economy and creating more jobs.

On September 2018, a five-judge Bench in the Jarnail Singh case unanimously agreed with a 2006 judgment of another five-judge Bench in the M. Nagaraj case, which had upheld the application of the creamy layer principle  in promotions.

WHAT IS CREAMY LAYER?

The concept of creamy layer has its genesis in a 1992 Supreme Court judgment in the Indira Sawhney vs Union of India case. Since then, two other significant Supreme Court judgments- one in M. Nagaraj vs Union of India and another in the Jarnail Singh case- have laid down the law in this regard. The ‘creamy layer’ concept is a principle of identification (of those who should not get reservation) and not one of equality.

Creamy layer is based on the status of your parents. According to the 1993 order of DoPT, sons and daughters of Group A/Class I Officers of All India Central and State Services (direct recruits), Group B/Class II Officers of Central and State Services (direct recruits), employees of Public Sector Undertakings etc. and Armed Forces fall within the creamy layer, and, therefore, they would not be entitled to reservation benefits.

The order also included within the creamy layer sons and daughters of people with a gross annual income of Rs 1 lakh above or possessing wealth above the exemption limit as prescribed under the Wealth Tax Act for a period of three consecutive years. However, the ceiling has been revised only four times since 1993 — the last time it happened was in September 2017 when the cap was raised to Rs 8 lakh per annum.

BENEFITS OF HAVING CREAMY LAYER:

• Unless the creamy layer principle is applied, those genuinely deserving reservation would not access it and those who were under deserving within the same class would continue to get it, thus depriving the most needy.
• It can help in rationalizing the reservations, which can eventually pave the way for a more egalitarian society.

CONCERNS:

• A separation based on economic criteria is contradictory to the basic principle of caste based reservation which focuses on social justice.
• Once applied, this principle has been extended to Dalits, who have been acknowledged to be the most backward among the backward sections.
• Another problem is the question whether the exclusion of the economically advanced sections among SC/ST candidates can be disallowed only for promotions. Most of them may not fall under the ‘creamy layer’ category at the entry level, but after some years of service and promotions, they may reach an income level at which they fall under the ‘creamy layer’. This may result in the defeat of the object of the Constitution amendments that the court itself had upheld to protect reservation in promotions as well as consequential seniority.

• According to Article 366 (2) an Anglo-Indian means a person whose father or any of whose other male progenitors in the male line is or was of European descent but who is domiciled within the territory of India or born within such territory and whose parents habitually were resident in India and not established for temporary purposes only.
• Article 331 of the Constitution empowers the President to nominate maximum of two members of the Anglo Indian Community to the Lok Sabha, if he/ she is of the opinion that the community is not adequately represented.
• Similarly, under Article 333 of the Constitution the Governor can nominate one member from the Anglo Indian Community to the state assembly, if he/ she is of the opinion that the community is not adequately represented.
• The 95^th Amendment of the Constitution of India extended the period of reservation of seats for the SCs, STs and representation of the Anglo-Indians in the Lok Sabha and the State Legislative Assemblies for another ten years, i.e. up to 26 January 2020.

CONCLUSION:

• In the 21st century, it is quite debatable if the caste of a person even forms a reasonable basis for reservation in government jobs and colleges. Many people of lower castes have stepped up the social ladder and are now on an equal footing with the ‘general’ population. On the other hand, many upper castes are still suffering from poverty and illiteracy.
• However, the caste-based reservation cannot be claimed to be completely irrelevant as the time in which it was created India had many discriminatory laws and rules made by religious heads on various levels.
• Even if the central government wants to give quota to the poor in the upper castes, it should first identify castes in upper castes that are socially disadvantaged and then consider economic backwardness.
• For the existing reservation structure, alterations can be brought forth.
  • In case of SC/ST reservations, for rationalizing the benefits, the directions of the Supreme Court to introduce creamy layer must be made a reality.
  • For the OBCs, sub categorization can be done across the country, like it was implemented in Bihar. This can ensure that the well-off categories in the OBC do not take disproportionate advantage of the OBC reservation.

Practice Questions

Q. Economic criteria in reservations provide a much needed dogmatic shift in the reservation system in India. In this regard, critically examine the need for creamy layer system in SC/ST reservations?