Reservation policy held hostage to political rhetoric
RESERVATION has emerged as a key electioneering issue in this General Election. The debate revolves mainly around the quota for Muslims, even as the principal opposition party, the Congress, is claiming that the ruling dispensation would do away with the reservation policy if it retains power. Political rhetoric apart, reservation is and would remain for long the main plank of a sovereign guarantee for the inclusion of the groups which have historically suffered isolation and discrimination for socio-economic and cultural reasons.
Provisions relating to reservation are mentioned at four places in the Constitution. Articles 330 to 335 provide for reservation to Scheduled Castes (SCs) and Scheduled Tribes (STs) in the legislature, representation to the Anglo-Indian community in the House of the People by nomination and claims of SCs and STs in government services. Articles 15(3), 15(4) and 15(5) provide for special provisions for women and children and reservation for SCs, STs and socially and educationally backward classes in educational institutions, including private and excluding minority educational institutions. Article 15(6) was later added by way of the 103rd Constitutional Amendment Act, 2019, to provide reservation in educational institutional for economically weaker sections.
Articles 16(4), 16(4A) and 16(4B) contain provisions relating to reservation in government jobs for people of any backward class, not adequately represented in appointments and posts. Article 16(5) was added in 2019 to give reservation to economically backward citizens in appointments to government services. Articles 243D and 243T provide reservation of seats for SCs and STs in panchayats and municipalities.
Job reservation and political reservation to the members of SCs in the Lok Sabha and in the legislative assemblies of states may be traced to the provisions of the Government of India Act 1935 in the backdrop of untouchability and denial of civil rights to them; through the guarantee of representation in the legislature and the executive, the framers of the Constitution have aimed to mitigate the negative consequences of social seclusion of these groups and strengthen inclusive character of Indian polity and governance.
Since untouchability is a social evil specific to Hindu religion, the Muslim did not find mention in the list of SCs. Even the British refused to include underprivileged Christians in the list of SCs in 1936. Additionally, the geo-spatial isolation and cultural barriers suffered by the STs justified positive discrimination in their favour in order to rehabilitate them in the main stream national life; reservation for them is mainly borne out of the cultural context, irrespective of religion.
The philosophy of ‘affirmative action’ finds its application in Articles 331 & 333, wherein it is provided that up to two members from the Anglo-Indian community may be nominated to the Lok Sabha to ensure their adequate representation; this was to ensure that they did not remain unrepresented in the legislative body.
Initially, constitutional scheme provided reservation only for the SCs and STs; reservation for backward classes came into focus after the Supreme Court (SC) in State of Madras vs Smt Champakam Dorairajan (1951) noticed that Article 16(4) provides reservations in services to any backward class of citizens not adequately represented, whereas, no such enabling provision is available in Article 15; this led to the First Constitutional Amendment, whereby Article 15(4) was added to provide reservation for socially and educationally backward classes in educational institutions. Subsequently, the Kaka Kalelkar Commission was appointed in 1953 to investigate conditions of the backward classes; the Second Backward Classes Commission was appointed in 1979 under the chairmanship of BP Mandal.
The Mandal Commission developed 11 indicators of social, educational, and economic backwardness and recommended 27 per cent job reservation for them; in absence of credible data to determine backwardness, caste became the easiest choice to tag backwardness; the commission paved the way for reservation in the OBC category even for the Muslims and other non-Hindus, if they belonged to ‘untouchable’ Hindu castes before their conversion to a non-Hindu religion, or if they continued with their pre-conversion trade and occupation after conversion. Several states have given reservation to Muslims under the OBC category since the Central Government accepted the Mandal recommendations in 1990.
The constitutional scheme of reservation has come under the apex court’s scrutiny on a number of occasions. In Indra Sawhney vs Union of India (1992), the SC held that the creamy layer of OBCs should be excluded from the list of beneficiaries; there should be no reservation in promotions and the total reserved quota should not exceed 50 per cent. However, Parliament passed the 77th Constitutional Amendment to restore reservation in promotions.
In the Ashok Thakur case (2007), the SC stated that the government must set reservation thresholds to ensure that quality and merit do not suffer and recommended review of backwardness every 10 years. In Suraj Bhan Meena vs State of Rajasthan (2011), the apex court observed that without quantifiable data of backwardness and under-representation, government rules for reservation cannot be introduced.
Inclusion implies exclusion. The reservation policy was established in the Constitution as a temporary measure to ensure justice and inclusion in the mainstream life of those who were left behind because historical reasons; accordingly, periodic review of the policy was inbuilt in the constitutional scheme to exclude those who benefited from the policy in order to make way for other deserving ones; it has not happened so far due to vote-bank politics.
The reservation policy subscribes to the philosophy of ‘affirmative action’ to guarantee inclusive growth for all, especially the underprivileged ones; there is a case to implement the policy in the spirit of constitutionalism and not to serve political interests.
