Mentor’s Comment
- Give instances of recent granting quota
- Give constitutional Criteria for granting quota
- discuss why there is a rise in such quota
- suggest challenges due to this
- Conclude suggesting some way forward.
Answer:
Recently the Government of India passed an act providing 10% reservation in jobs and educational institutions to the economically weaker sections in the general category. The 10% reservation will be in addition to the existing cap of 50% reservation for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes, taking the total reservation to 60%. Also the state of Maharashtra had provided for 16% Maratha reservation in both, education and public jobs. Bombay High Court (HC) upheld the reservation for Maratha community in government jobs and education valid but suggested to reduce the quota percentage from present 16% to 12-13%. These incidents have led to focus on the ceiling limit of 50% reservations as set out in the 1993 Indra Sawhney case.
Constitutional Provisions for Reservation in India:
Article 15(4) and 16(4) of the Constitution enabled both the state and Central Governments to reserve seats in public services for the members of the SC and ST, thereby, enshrining impartiality of opportunity in matters of civic service.
Article 16(4 A): it makes provisions for reservation in the matter of promotion to any class or classes of posts in the services under the State in favour of SCs and STs (Constitutional 77th Amendment, – Act, 1995).
Article 16 (4 B): It enables the state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year (Constitutional 81st Amendment, – Act, 2000).
Article 330 and 332: It provides for specific representation through reservation of seats for the SCs and the STs in the Parliament (Article 330) and in the State Legislative Assemblies (Article 332), as well as, in Government and public sector jobs, in both the federal and state Governments (Articles 16(4), 330(4) and 335).
Debatable problems with recent reservation policies in terms of constitutional provisions:
Reservation, so far, has generally been for a class of citizens belonging to various castes or communities. Even the SC and ST quotas are for a group of communities.
The major hurdle for the implementation of the recent Act is the legal scrutiny.
The Supreme Court has ruled multiple times against exceeding its 1992 formula of a maximum of 50% reservation (Indira Sawhney v. Union of India).
However, there are states like Tamil Nadu that go beyond this limit and the Supreme Court has upheld the state’s policy many a time. Presently, the state has a ‘69 per cent quota system’.
From the Poona Pact (1932) between M K Gandhi and Dr B R Ambedkar to the Constituent Assembly debates, reservation was talked about in the context of social backwardness of classes.
The 124th Amendment makes a departure by extending reservation to the economically disadvantaged.
Article 15(4), inserted by the First Amendment in 1951, enables the state to make special provisions for socially and educationally backward classes.
Article 16(4) permits reservation for any backward class if it is not adequately represented in services under the state.
Thus, reservation is not a right but, if granted, it will not be considered a violation of the right to equality.
Article 46, which is a non-justiciable Directive Principle, says that the state shall promote educational and economic interests of “weaker sections”, in particular SCs and STs, and protect them from “social injustices” and “all forms of exploitation”.
While the 124th Amendment mentions Article 46 in its statement and objects, it seems the government overlooked the fact that upper castes neither face social injustice nor are subjected to any form of exploitation.
Moreover, the Constitution makes provisions for commissions to look into matters relating to implementation of constitutional safeguards for Scheduled Castes (Article 338), Scheduled Tribes (338A) and Socially and Educationally Backward Classes (339), but has not created any commission for the economically backward classes.
By upholding the “Maratha quota”, the Gaikwad Commission, state of Maharashtra and the High Court seem to be creating precedence for a community-specific quota. Such a caste- or community-specific quota has a different logic and trajectory from that of a grouping of communities into classes of citizens deserving affirmative action.
Even if the state were to accept the exceptional situation like in Maratha reservation case, necessitating crossing the 50 per cent limit, why is it that one community gets a separate quota.
What does these recent policy measures reflect?
All these steps are results of contemporary policies and failures of successive state governments to address the well being of a large section of society.
But these are invoked to justify the exceptionality of the extra quota.
This tendency of transposing contemporary routes of distress and discrimination onto history tends to undermine the logic behind the social justice policy as understood so far.
Precisely this same logic of contemporary distress is being used for the reservation for economically weaker sections.
In this sense, we are rapidly moving away from the constitutional logic behind enabling clauses such as Articles 15 and 16. Instead, reservation is seen as the solution to hide distortions of contemporary economic development.
Equality in India has been held to be the very essence of democracy and rule of law. While equality permits reasonable classifications, these are to be based on intelligible differentia, should have rational objects to achieve and should not be fanciful and arbitrary. In this case, the court has to examine the equality code of the Constitution and whether the state has considered and valued the circumstances justifying it, to make reservation. This would require that the state’s decision is rational and non-arbitrary. The state has to show quantifiable data to satisfy the court as to inadequacy of representation of economically backward classes.
