DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY
FINAL DRAFT Legal Research Research and Wr Writing TOPIC:Reservation under Indian Constitution
Under Supervision of: Submitted by: Ms. Shakuntala Sangam Sudhanshu Kumar Viplava Assistant Assistan t Professor of Law No.135 (Section B)
Roll
Dr. RMLNLU B.A. L.L.B. (Hons.) Sem!""
1
TABLE TABLE OF CONTENTS
Page No.
ACKNOWLEDGEMENT
3 4 SYNOPSIS 6 INTRODUCTION AND NON DOCTRINAL RESEARCH 9 DOCTRINAL AND THE RATIONALE OF THE PRESENT RESERVATION SYSTEM: 9 11 BACKGROUND: EMPIRICAL RESEARCH FINDINGS OF THE MANDAL COMMISION REPORT: 13 OBSERVATIONS AND FINDINGS RECOMMENDATIONS: QUANTUM AND SCHEME OF RESERV RESERVA ATIONS: ITICIS ISM M OF EMPIRICA ICAL DATA CRITIC
APPROACH ACH
RESERVA RESERVATION BY MANDAL MANDAL COMMISSION: MANDATE: CONSTITUTIONAL MANDATE: RESERVATION FOR BACKWARD BACKWARD CLASSES RESERVA
OF
15 GIVING ING
IN
1 1! INDIA:
"# RESERVATION NOT PERMISSIBLE: PERMISS IBLE: "3 CENT PERCENT RESERVATION RESERVATION CONCEPT OF CREAMY LAYER: "4 E$TENT OF RESERVATION "5 CONCLUSION "6 BIBLIOGRAPHY
#
Acknowledgment It is not a ritual but a heartfelt feeling that I wish to express m gratitude! In writing this resear"h pro#e"t$ I am indebted to man in the "ourse of this resear"h pro#e"t!
%u"h of the data deploed here has been ta&en from the Dr! %adhu Limae Librar$ Dr! Ram %anohar Lohia National Law 'niversit!
I am also than&ful to %s (ha&untala (angam )Assistant *rofessor$ Dr! Ram %anohar Lohia National Law 'niversit+ who believed in me for doing this pro#e"t! This pro#e"t would have been impossible without her guidan"e and valuable suggestions!
3
Objective of the Project:
The ob#e"tive of the pro#e"t is to throw light upon the
provision of reservation provided under Indian Constitution on the basis of so"ial$e"onomi" and edu"ational ba"&wardness whi"h was as"ertained empiri"all in various reports and "ommissions!%andal "ommission being one of the most "ru"ial amongst them$ in its report "arved ot a new set of ba"&wards in the Indian so"iet whi"h "ame to be &nown as ,ther -a"&ward Classes!
Research Methoo!og":
The methodolog in this resear"h stud is not one.
dimensional! It is rather host of histori"al$ theoreti"al$empiri"al and analti"al!
So#rces of ata:The data is "olle"ted from primar as well as se"ondar sour"es! -oo&$ /ournals and %aga0ines available in librar is the main sour"e!
Research $#estio%aire:The
resear"her through this pro#e"t will tr to find out
answers to following 1uestions: • • • •
2hat does the Indian Constitution have to sa in regard to reservations3 2hat is the empiri"al basis of granting reservation to parti"ular "astes3 Is the "riteria for determining ba"&wardness given under Indian Constitution #ustified3 2hat is theoreti"al approa"h behind reservation poli"3
&"'othesis: Reservations "annot ta&e the pla"e of "omprehensive so"ietal "hanges$ but the "onstitute a ver important$ ne"essar step in the pro"ess of "ompensating for "enturies of dis"rimination! Reservations promote integration in the upper strata of so"iet 4 b in"reasing the a""ess of highl disadvantaged and under.represented "ommunities to elite o""upations and de"ision ma&ing positions! In this manner$ reservations result in greater empowerment of hitherto disadvantaged
"ommunities!
A stud on the impa"t of three de"ades of reservations in higher edu"ation for the (C5(T "ommunit in India 6 shows that 7reservation poli"ies at all levels of higher edu"ation both redistribute (C and (T students upward in the universit 1ualit hierar"h and attra"t into ma sE.We i s s Kop f ,“ I mp ac to fRe se r v at i o nsonHi gh erEd uc at i o ni nI n di a ” 1 Tho h t t p : / / www. e pw. or g . i n / s ho wAr t i c l es . p hp? r oo t =2 00 4&l e af =0 9&fi l e na me =77 28&fi l e t y pe=h t ml
$
universities signifi"ant numbers of (C and (T students who would not otherwise pursue higher edu"ation!8 This stud also found that while su"h reservations were mostl availed of b the more well.off se"tion of the (C5(T population$ this was not surprising due to the immense "hallenges fa"ed b the poorest of the poor in persisting through s"hool in order to rea"h higher edu"ation! In addition$ the average so"io.e"onomi" status of the (C5(T students was signifi"antl lower than that of other students$ thus suggesting that reservation poli" did not benefit well.off (C5(T students at the expense of less.well.off appli"ants from the rest of the population!
5
I%tro#ctio%: The framers of the Indian Constitution$ emphasi0ed upon "ertain aspe"ts li&e (e"ularism$ Integrit$ Freedom and 91ualit! A""ording to the Indian Constitution$ there should be 91ualit on the basis of "aste$ religion$ sex and so on! It is must for all the residents of the "ountr to abide b these rules and regulations and ma&e sure e1ualit is maintained in all aspe"ts! (u"h matters not onl in"lude right to &nowledge$ edu"ation$ religion but also other areas li&e emploment opportunities and benefits! It is "learl stated in Artic!e ()*(+ of the I%ia% Co%stit#tio% $ that ,There shall be e1ualit of opportunit for all "iti0ens in matters
relating to emploment or appointment to an offi"e under the (tate8! Introdu"tion of su"h "lauses provided se"urit to all the "iti0ens of the "ountr irrespe"tive of their religion$ "aste and sex and also helped in inspiring people to opt for the right path to lead life that would instigate honest and fair pra"ti"es throughout the "ountr! en"e$ the "on"ept of 7 E-#a!it"8 evolved! The time when the Indian Constitution was made$ India was going through a ver rough phase and was extremel sensitive in several areas! ,ne su"h area in"ludes the underdeveloped people li&e the women and "hildren and the ("hedule "astes and tribes$ whose "onditions were ver vulnerable and needed immediate se"urit! Thus$ to help these ba"&ward people the ;overnment made "ertain amendments so that these wea&er se"tions of the so"iet "an "ome up at par with the more developed part of the so"iet! ,ne of su"h amendments was the introdu"tion of Artic!e ()*+ i% the I%ia% Co%stit#tio% $ whi"h states that e1ualit of opportunit for all "iti0ens in matters relating to emploment or appointment to an offi"e under the (tate! -ut it is also mentioned that$ 7Nothing in this Arti"le shall prevent the (tate from ma&ing an provisions for the reservation of appointments or posts in favour of an bac/0ar c!ass of citi1e%s2 whi"h in the opinion of the (tate$ is not ade1uatel represented in the servi"es under the (tate8! 2ith the in"reasing demo"rati0ation of governments$ the fundamental problem has been to pull down the barriers of segregation and to offer e1ual opportunities to all! The aim of demo"ra" has everwhere been to eliminate 7%an made so"iall fostered$ dis"rimination that has enlarged for some and has restri"ted for others< avenues that lead to edu"ation$ in"ome and advan"ement!8 owever$ this doesn
%
(o far as the An"ient Indian Culture and Civili0ation is "on"erned$ the =edas and (mritis spea& highl of e1ualit and brotherhood. > 3as#haiva 4#t#5ba/a5< ),ne 2orld ,ne Famil+! 7The entire world is a famil8 was the motto of =edi" "ivili0ation! All had e1ual opportunit in all wal&s of life in an"ient India! The =edi" age was more liberal in providing e1ual status to the people! -uddhism$ /ainism$ (haivism$ =aishnavism$ (i&hism and other indigenous Indian religions also prea"h the prin"iples of brotherhood and e1ualit! The "onstitution of India guarantees e1ualit$ in"luding sexual$ to everone *Artic!es ( 6 (7+! All laws whi"h are in"onsistent with the Fundamental Rights enshrined in the
Constitution are void *Artic!e (8+! ?et religious personal laws that dis"riminate against women are still valid$ not void$ even after four de"ades after the adoption of the Constitution! The (tate has not adopted a "onsistent poli" with regard to reform of religious personal laws! The -ritish and the su""essive Congress governments have extensivel reformed the supposed indu personal law in order to give e1ual right to indu men and women! The personal laws of the so."alled minorities are left virtuall untou"hed$ ostensibl be"ause the leaders of these "ommunities "laim that their religious laws are inviolate! The present situation is that the women of the minorit "ommunities li&e %uslims "ontinue to have une1ual legal rights$ thus resulting in gross pra"ti"e of sexual dis"rimination! *resentl the movement of women into emploment$ whi"h "ame at a later date in India than in man western "ountries$ have experien"ed seeing Indian women move su""essfull into high positions in ever possible field! This &ind of movement brings in a variet of new problems$ su"h as sexual harassment at wor& pla"es$ problems of ego and so on! These problems must be dealt with b institutions$ i!e!$ laws against dis"rimination are to be enfor"ed b the institutions! ,n the other hand we find that almost for the last two de"ades there is an overwhelming ma#orit in the nation that is still ba"&ward @ so"iall$ e"onomi"all$ edu"ationall$ and politi"all! From the above problems the framers of the Constitution of India felt it right to provide some spe"ial prote"tion to the inse"ure and wea&er parts of the so"iet and hen"e evolved the "on"ept of 7 Protective 9iscri5i%atio%8! In the "ase of I%&'() S*)+%,- . U%'/% /0 I%&')" also &nown as the M)%&) C/22''/% C),$ for the first time the Indian Legal
# 6B (upp )+ (CC B6B
&
sstem too& a valid step to substantiall prote"t the minorities and under.privileged people b giving a ver reasonable #udgement! The (upreme Court of India laid down that so"iall advan"ed members of the ba"&ward "lass$ the 7Cream laer8$ has to be ex"luded from the ba"&ward "lass and the benefits of reservation under Arti"le 6)E+ whi"h is onl valid to a "lass whi"h remains after the ex"lusion of the 7Cream laer8! -ut in the th A5e%5e%t to the Co%stit#tio% reservation in promotion to the ("heduled Castes and ("heduled Tribes
has been permitted! Thus$ b amending the Constitution$ the *arliament has re moved the base as interpreted b (upreme Court in I%&'() S)*+%,- that the appointment does not in"lude promotion! In the "ase of India$ the reservation poli" has been adopted for alleviating ine1ualities in the politi"al and e"onomi" s"enarios! This is a method of a"hieving substantive e1ualit! India has a pluralisti" so"iet and the main forms of dis"rimination are "aste and religion! India being a male dominated so"iet$ sex is also an important basis for ine1uit! The "onstitution swears to not dis"riminate on an of these grounds and hen"e we have a reservation poli" for the prote"tion of the interests of all dis"riminated groups! The problem arises in targeting this group and meeting the ends for whi"h reservation is "reated! In law$ there are two prin"iples that have to be "omplied with before legislating it! First$ there should be a rationale for "reating the said law and se"ond$ there should be nexus between the law and the goal sought to be a"hieved! The rationale has been #ustified time and again b our legislators and people have "ome to terms with the fa"t that there is no other wa to subdue dis"rimination than reservations! -ut is there a dire"t lin& between the provisions of this poli" and the ultimate goal of e1ualit3 The answer to this 1uestion &eeps "hanging from time to time and that is what we are tring to anal0e in this paper! The minorities in India started getting re"ogni0ed b law through the provision of "ommunal ele"torates! This was seen as one of the reasons for the partition of India and *a&istan$ but from the viewpoint of e1ualit$ this was one of the first efforts to bring about politi"al e1ualit and avoid dis"rimination against minorit "ommunities! The reservation poli" in the basis of "aste started when the (imon Commission "ame to India with the rule of separate ele"torates and reservations for depressed "lasses! -ut a "on"rete legislation was passed onl
3 -asu$ Durga Das )BG+! I%(/&'/% / +, C/%''/% /0 I%&')! Nagpur: LexisNexis -utterworths 2adhwa! p! G!
'
later on after independen"e when Dr! -!R! Ambed&ar fought for the rights of the (C
9octri%a! a% No% 9octri%a! Research Do"trinal Resear"h is "on"erned with legal prepositions and do"trines! whereas non do"trinal resear"h is "on"erned with people$ so"ial values and so"ial institutions! in "ase of do"trinal resear"h the sour"es of data are legal and appellate "ourt de"isions whereas in the other "ase the sour"es of data are less and mostl new te"hni1ues have to be used! do"trinal resear"h is not "on"erned with people but do"uments whereas in "ase of non do"trinal more importan"e is given to the so"iet and people! the s"ope of do"trinal resear"h is narrower as "ompared to non do"trinal sin"e it studies about what the do"trine or the authorit sas et more en"ouragement is given to do"trinal tpe of resear"h than the non do"trinal! there is no re1uirement of imparting training for "olle"tion and use of sour"es whereas training is needed to use new te"hni1ues in the non do"trinal resear"h! in "ase of do"trinal field wor& is not needed librar is suffi"ient whereas in non do"trinal resear"h the field wor& is most important ingredient! Although Reservation poli" is a do"trine well established now in India$its roots lies in all the data and findings of various "ommissions and "ommittees who have put their efforts to "olle"t empiri"al data so as to determine the real situation in so"iet and to re"ognise those who are ba"&ward on all the parameters and those who need some &ind of affirmative a"tion to give them the proper and ade1uate representation in the Indian politi"al sstem!This is the reason wh both the pro.reservationists and the anti.reservationists either tr to support the empiri"al data findings of su"h reports or tr to "ontradi"t them!
T&E
RATIONALE
OF
T&E
S;STEM:
PRESENT
RESER3ATION
E5'irica! research !eai%g to octri%a! 0or/ of affir5ative actio% via reservatio%:
7I ' )8)'% +, 0%&)2,%) ('%', /0 +2)%'- ' ' )8)'% +, &'), /0 (,)/% +) ) 2)% +/& ;- (,)/% /0 ;'(+ ;, &,%',& /( 8'.,% ,<() ('.',8,7 =M)+)2) G)%&+' Reservation as we see it toda$ was not what the dalits of India wanted! The (imon Commission had agreed to the H(eparate 9le"torateH demand of Dr! Ambed&ar! E %ahatma ;andhi in protest de"ided to fast unto death be"ause he was of the view$ that this will "reate further divisions between the untou"hables and upper "aste indus! Reservation was agreed upon b Dr! Ambed&ar in the *oona *a"t! Criti"s of the %andal Commission argue that it is unfair to a""ord people spe"ial privileges on the basis of "aste$ even in order to redress traditional "aste dis"rimination! Reservation poli" has its avowed ob#e"tive of the amelioration of -Cs who were the vi"titn of the prevalent "aste stem: a feature uni1ue to the Indian so"ial mileu! It is generall understood as involving three aspe"ts.positive dis"rimination$ reverse dis"rimination and "ompensator dis"rimination! *ositive dis"rimination involves providing spe"ial treatment to those who are sus"eptible to exploitation! Reverse dis"rimination is a sort of vindi"tive measure$ whi"h in other words means dis"rimination against those who had dis"riminated a parti"ular "lass for de"ades! Compensator dis"rimination involved adoption of rneasures to safeguard the interests of histori"all disadvantaged se"tions of people!
Reservation was introdu"ed to bring an e1ualit in between the 'pper $ %iddle and Lower "lass so"ieties b upgrading the standard of Living $ Litera" and *osts of Lower and -a"&ward "onsidered "lasses ! The word 7reservation8 has attained a parti"ular legal signifi"an"e in matters relating to publi" emploment! The "on"ept is founded on separating individuals or groups having "ertain "hara"teristi"s )pertaining to ba"&wardness as per Arti"les 6)E+ J 6)E++ from the general "ategor of "andidates and "onferring on them the
$ Baasa*e Ama+e,ar - writins an+ s/eec*es 0ol../.#.)
5 %andal$ /agadis C! *oona *a"t and Depressed Classes! Cal"utta: (u#an *ubli"ations$ 6! % D*arma 2mar. 4*e Armatie Action Deate in "n+ia. Asian Sre60 3#-#7837#0 1#.
17
benefit of spe"ial treatment! It is dis"rimination made in favour of the ba"&ward "lasses vis. K.vis the "iti0ens in general and has been referred to as >Compensator dis"rimination< or >*ositive Dis"rimination
11
BAC4 is a landmar& de"ision of the (upreme Court of India!It was this #udgment that ne"essitated the Constitution First Amendment$ whi"h added Clause )E+ to Arti"le 6! The (upreme Court$ in its 6 November 6B #udgment in the Indra (awhne "ase$ ruled that reservations in promotions are %/%''/%) $ but allowed its "ontinuation for ears as a spe"ial "ase! In 6$ MMth amendment to the Constitution was made to insert "lause )EA+ to Arti"le 6 before the five.ear period expired to "ontinue with reservations for (C5(Ts in promotions! Clause )EA+ was further modified through the Gth amendment in order to give the benefit of /%,>,%') ,%'/('- to (C5(T "andidates promoted b reservation! The G6st amendment was made to the Constitution that inserted "lause )E-+ in Arti"le 6 to permit the government to treat the ba"&log of reserved va"an"ies as a separate and distin"t & Baasa*e Ama+e,ar - writins an+ s/eec*es 0ol../.#.)
' AIR 66 (C BB
1#
group$ to whi"h the limit of per"ent "eiling on reservation ma not appl! The GBnd amendment inserted a provison in Arti"le to enable states to give "on"essions to (C5(T "andidates in promotion! The validit of all the above four amendments i!e! MMth$ G6st$ GBnd and Gth was "hallenged in the (upreme Court through various petitions "lubbed together in M Nagaraj & Others vs. Union of India & Others 9$ mainl on the ground that these altered the -asi" (tru"ture of the
Constitution! ,n 6 ,"tober B$ the (upreme Court upheld these four amendments but stipulated that the "on"erned state will have to show$ in ea"h "ase$ the existen"e of /2,'%8 (,)/% whi"h in"lude ;)?*)(&%,$ '%)&,>)- /0 (,(,,%)'/% and overall )&2'%'()'., ,00'',%-$ before ma&ing provisions for reservation! The "ourt further held that these provisions are merel enabling provisions! If a state government wishes to ma&e provisions for reservation to (C5(Ts in promotion$ the state has to "olle"t 1uantifiable data showing ba"&wardness of the "lass and inade1ua" of representation of that "lass! The "entral government appointed the first -Cs "ommission under the "hairmanship of 4a/a 4a!e!/ar on B /anuar 6! It submitted its report on 6 %ar"h 6! ,n the basis of
"riteria evolved b it$ the "ommission listed B "astes as so"iall and edu"ationall ba"&ward! TPhe se"ond -Cs Commission was appointed under the "hairmanship of B.P Ma%a!(? on 6st /anuar 6M! The "ommission submitted its report on 6 st De"ember 6G!
In its findings it found that the (C and (T "onstituted ""@5 of the population and the ,-Cs 5"@ Thus in a""ordan"e with the prin"iples of #usti"e B of the posts under "entral government should be reserved for them! -ut sin"e th" (upreme Court has firml laid down that reservation should be restri"ted to 5# the "ommission re"ommended that total reservations should he E! i!e !BM for the ,-Cs and BB! for (C and ("heduled Tribes! The Comrnission also r""ommended that reservations should extend even to the
B)G +(CCB6B
17 B.P. Man+al. 4*e Man+al 9ommission Re/ort0 1'7.
13
private se"tor whi"h is aided b the "entral government! The =!*! (ingh govt! a""epted the re"ommendations with a minor modifi"ation on A8 199# after a span of nearl ten ears sin"e the "ommission had submitt"d its report$ The government de"ided that "andidates belonging to so"iall and edu"ationall ba"&ward "astes re"ruited on the basis of merit in an open "ompetition on the same standards pres"ribed for the general "andidates shall not be ad#usted against the reservation of BM per"ent! This was 1uite "ontrar to the re"ommendations of the "ommission whi"h stated that it shall be ad#usted against the reservation of " per"ent!
E5'irica! Research fi%i%gs of the Ma%a! Co55isio% Re'ort: Criteria to ie%tif" OBC ((
The %andal Commission adopted various methods and te"hni1ues to "olle"t the ne"essar data and eviden"e! The "ommission adopted 66 "riteria whi"h "ould be grouped under three ma#or headings : so"ial$ edu"ational and e"onomi" in order to identif ,-Cs! Socia!
)i+ Castes5"lasses "onsidered as so"iall ba"&ward b others! )ii+ Castes5"lasses whi"h mainl depend on manual labour for their livelihood! )iii+ Castes5"lasses where at least B per "ent females and 6 per "ent males above the state average get married at an age below 6M ears in rural areas and at least 6 per "ent females and per "ent males do so in urban areas! )iv+ Castes5"lasses where parti"ipation of females in wor& is at least B per "ent above the state average!
E#catio%a!
)v+ Castes5"lasses where the number of "hildren in the age group of @6 ears who never attended s"hool is at least B per "ent above the state average! )vi+ Castes5"lasses where the rate of student drop.out in the age group of @6 ears is at least B per"ent above the state average! )vii+ Castes5"lasses amongst whom the proportion of matri"ulates is at least B per "ent
11 See Man+al 9ommission Re/ort on *tt/-::www.ncc.nic.in:User;Panel:User!iew.as/<=46/e"D>11%1 1$
below the state average! Eco%o5ic
)viii+ Castes5"lasses where the average value of famil assets is at least B per "ent below the state average! )ix+ Castes5"lasses where the number of families living in &u""ha houses is at least B per "ent above the state average! )x+ Castes5"lasses where the sour"e of drin&ing water is beond half a &ilometer for more than per"ent of the households! )xi+ Castes5"lasses where the number of households having ta&en "onsumption loans is at least B per"ent above the state average! Also &nown as HCream laer$H this "riteria of separation is ignored b the government whi"h is &nown as the most "ontroversial issue of reservation!
@eighti%g i%icators
As the above three groups are not of e1ual importan"e for the purpose$ separate weightage was given to indi"ators in ea"h group! All the (o"ial indi"ators were given a weightage of points ea"h$ edu"ational indi"ators were given a weightage of B points ea"h and e"onomi" indi"ators were given a weightage of 6 point ea"h! 9"onomi"$ in addition to (o"ial and 9du"ational Indi"ators$ were "onsidered important as the dire"tl flowed from so"ial and edu"ational ba"&wardness! This also helped to highlight the fa"t that so"iall and edu"ationall ba"&ward "lasses are e"onomi"all ba"&ward also! It will be seen from the values given to ea"h indi"ator$ the total s"ore adds up to BB! All these 66 indi"ators were applied to all the "astes "overed b the surve for a parti"ular state! As a result of this appli"ation$ all "astes whi"h had a s"ore of )i!e! 66 points+ were listed as so"iall and edu"ationall ba"&ward and the rest were treated as Padvan"edP!
Observatio%s a% Fi%i%gs The "ommission estimated that E of the total population )ex"luding (Cs and (Ts+$ belonging to $ME different "astes and "ommunities were >ba"&ward
15
,-Cs amongst non.indus was of the same order as amongst the indus$ population of non.indu ,-Cs was also "onsidered as B per"ent!
Reco55e%atio%s: Again$ the "ontrovers over the CommissionPs re"ommendations is ver deliberatel$ I believe$ being "entred ex"lusivel on the s"heme of reservations in #obs and seats in edu"ational institutions for the ,-Cs! The "ommission$ following the (upreme Court in#un"tion that overall reservation should not ex"eed $ has in fa"t proposed onl BM reservation . BM for people who "onstitute B of the population! After the %andal s"heme is a""epted would this be E!$ within the limits drawn b the (upreme Court! It is well worth noting that the ,-C and (C5(T together "onstitute ME! of the population! 2hen reservation of #obs and edu"ational seats is given for people "onstituting nearl M of the population$ is it "ondemned as "asteist! -ut Those who "onstitute less than B grab M of power . and that is supposed to be in the national interest$ et"! -rahminst who are of the population en#o representation in the 'nion Cabinet$ in (e"retariat positions$ in ;overnorsP and =i"e.Chan"ellorsP and ambassadorial #obs$ that does not raise even an eebrow of the so."alled "asteless so"iet wallahasQ PCasteP "annot be used to den so"ial #usti"e to a vast ma#orit of the people neither "an "aste be allowed to be sued to maintain privileges and positions grabbed and retained b a mi"ros"opi" minorit for thousands of ears! The double standards b whi"h the not.so."on"ealed "asteism of the high "aste is "onsidered a""eptable and respe"table$ while$ P"asteP$ whi"h has "ondemned the lower "astes$ the ba"&wards$ the dalits$ the adivasis to a life of povert$ exploitation$ in#usti"e and humiliation is not be re"&oned with$ is a thoroughl dis"reditable posture and "an de"eive nobod! The struggle against "aste "annot be side.tra"&ed to perpetuate the domination of the higher "aste! The struggle against "aste is the most intense from of "lass.struggle in the Indian situation! -ut the main thing is that besides reservations$ the %andal Commission has re"ommended "ertain stru"tural "hanges! The Commission has bro&en fresh grounds and has "arried out its investigations into the "onditions of the ba"&ward se"tions among %uslims and Christians$ thus transgressing religious divisions! (o far$ onl indu dalits or ,-C "ommanded attention$ but the oppressed and the ba"&ward among non.indus were not given "onsideration! The Commission has shown$ with substantive eviden"e$ how ba"&wardness.
1%
so"ial and edu"ational.prevails even among religious "ommunities whi"h avowedl do not believe in "aste! The believe in the e1ualit of man! ?et there exist divisions of PhighP and PlowP! These Plow."astesP among %uslims and Christians are derived from their indu origins$ but perpetuated after "onversions$ though a long time ago$ and are parallel to similar indu "astes! The %andal Commission re"ommendations for indu ,-Cs are appli"able to non.indu ,-Cs also$ thus the struggle for the re"ommendations of the %andal Commission "an unite all the exploited and oppressed masses irrespe"tive of religious divisions!
$#a%t#5 a% Sche5e of Reservatio%s: ("heduled Castes and ("heduled Tribes "onstitute BB! of the "ountr
I5'!e5e%tatio% All the re"ommendations of the report are not et implemented! The re"ommendation of reservations for ,-CPs in government servi"es was implemented in 6! As on BM /une BG there was still a ba"&log of BG$ M ,-C va"an"ies in government #obs! The re"ommendation of reservations in igher edu"ational institutes was implemented in BG!
1&
Criticis5 of e5'irica! ata a''roach of givi%g reservatio% b" Ma%a! Co55issio%: The National (ample (urve puts the figure of indu ,-C population at B! There is substantial debate over the exa"t number of ,-CPs in India$ with "ensus data "ompromised b partisan politi"s! It is generall estimated to be si0able$ but lower than the figures 1uoted b either the %andal Commission or and National (ample (urve! There is also an ongoing "ontrovers about the estimation logi" used b %andal "ommission for "al"ulating ,-C population! Famous Indian (tatisti"ian$%r!?ogendra ?adav who supports Reservations agrees that there is no empiri"al basis to the %andal figure! A""ording to him HIt is a mthi"al "onstru"t based on redu"ing the number of (C5(T$ %uslims and others and then arriving at a number! National (ample (urvePs 6.B round estimated around per "ent of the "ountrPs population is defined as belonging to the ,ther -a"&ward Classes ),-C+! The proportion falls to B per "ent on ex"luding %uslim ,-Cs! A surve "ondu"ted in 6G b National Famil ealth (tatisti"s )NF(+ puts the proportion of non.%uslim ,-Cs as B!G per"ent L R Nai&$ the onl Dalit member in the %andal Commission refused to sign the %andal re"ommendations! e said that there are two so"ial blo"&s among the ,-Cs: upper "aste )/atand ;u##ar + and upper ,-Cs )?adavs$ urmis$ et"!+ and %ost -a"&ward Classes )%-Cs+! e feared that upper ,-Cs would "orner all the benefits of reservation!Re"entl also in B66$when the previous government "ondu"ted Socio Eco%o5ic a% Caste Ce%s#s ?(()(9CC+$its report has "reated a huge uproar as ever part and person is interested in
&nowing the exa"t number of ba"&ward "lasses in India and as per that figure$the want their big share as per their population! As the debate on ,-C reservations spreads$ a few interesting fa"ts whi"h raise pertinent 1uestion are alread apparent! To begin with$ do we have a "lear idea what proportion of our population is ,-C3 A""ording to the %andal Commission )6G+ it is B per"ent! A""ording to B6 Indian Census$ out of IndiaPs population of 6$BG$MM$E the ("heduled Castes "omprise 6$$M and ("heduled Tribes GE$B$BE$ that is 6!B and G!B respe"tivel! There is no data on ,-Cs in the "ensus! owever$ a""ording to National (ample (urvePs 6.B round around per "ent of the "ountrPs population is defined as belonging to the ,ther -a"&ward Classes ),-C+! The proportion falls to B per "ent on ex"luding %uslim ,-Cs! A surve "ondu"ted in 6G b National Famil ealth (tatisti"s )NF(+ puts the proportion of non.%uslim ,-Cs as B!G per "ent! The N((, data also shows that alread
1'
B! per "ent of "ollege seats are o""upied b ,-Cs! ThatPs #ust G! per "ent short of their share of population a""ording to the same surve! ,ther arguments in"lude that entren"hing the separate legal status of ,-Cs and (C5(Ts will perpetuate "aste differentiation and en"ourage "ompetition among "ommunities at the expense of nationalit! The believe that onl a small new elite of edu"ated Dalits$ Adivasis$ and ,-Cs benefit from reservations$ and that su"h measures do nothing to lift the mass of people out of ba"&wardness and povert!
CONSTIT=TIONAL MAN9ATE: The Constitution of India has provided$ among other various prote"tions and safeguards$ safeguards for *ubli" emploment to the persons belonging to the ("heduled Castes and ("heduled Tribes$ &eeping in view the dis"rimination and disabilities suffered b these "lasses to "at"h up and "ompete su""essfull with the more fortunate ones in the matter of se"uring publi" emploment! (pe"ifi" provisions for reservations in servi"es in favour of the members of ("heduled Castes and ("heduled Tribes have been made as follows in the Constitution of India:. Artic!e ()*(+: There shall be e1ualit of opportunit for all "iti0ens in matters relating to
emploment or appointment to an offi"e under the (tate! Artic!e ()*+: Arti"le 6 provides for e1ualit of opportunit for all "iti0ens in matters
relating to emploment or appointment to an offi"e under the (tate$ Nevertheless$ 7nothing in this Arti"le shall prevent the (tate from ma&ing an provision for the reservation of appointments or posts in favour of an ba"&ward "lass of "iti0ens whi"h$ in the opinion of the (tate$ is not ade1uatel represented in the servi"es under the (tate8! There have been two Constitution Amendments in"orporated in Arti"le 6)E+$ the are:. Artic!e () *A+ : Nothing in this arti"le shall prevent the state from ma&ing an provision
for reservation in matters of promotions$ with "onse1uential seniorit$ to an "lass or "lasses of posts in servi"es under the state in favour of (Cs5(Ts whi"h in opinion of state$ are not ade1uate b represented in the servi"es under the state! The MMth Amendment to the Constitution has been brought into effe"t permitting reservation in promotion to the ("heduled Castes and ("heduled Tribes!
1
Thus$ b amending the Constitution$ the *arliament has removed the base as interpreted b (upreme Court in Indira (awhne that the appointment does not in"lude promotion! Arti"le 6)EA+ thus revives the interpretation put on Arti"le 6! Rule of reservation "an appl not onl to initial re"ruitments but also to promotions! -ut no promotion "an be made in promotion posts for the ,-C
7Nothing in this arti"le shall prevent the (tate from "onsidering an
unfilled va"an"ies of a ear whi"h are reserved for being filled up in that ear in a""ordan"e with an provision for reservation made under "lause )E+ or "lause )EA+ as a separate "lass of va"an"ies to be filled up in an su""eeding ear or ears and su"h "lass of va"an"ies shall not be "onsidered together with the va"an"ies of the ear in whi"h the are being filled up for determining the "eiling of fift per "ent reservation on total number of va"an"ies of that ear!8 The Constitution )9ight. First Amendment+ A"t$ B has added Arti"le 6)E-+ to the Constitution! The Amendment envisages that the unfilled reserved va"an"ies are to be "arried forward to the subse1uent ears and these va"an"ies are to be treated as distin"t and separate from the "urrent va"an"ies during an ear! The rule of reservation laid down b the (upreme Court is to be applied onl to normal va"an"ies! This means that the unfilled reserved va"an"ies "an be "arried forward from ear to ear without an limit$ and are to be filled separatel from the normal va"an"ies! This Amendment also modifies the proposition laid down b the (upreme Court in I%&'() S)*+%,-@ Artic!e 887: This arti"le provides that 7the "laims of the members of the (Cs and (T s shall
be ta&en into "onsideration$ "onsistentl with the maintenan"e of effi"ien" of administration in the ma&ing of appointments in servi"es and posts in "onne"tion with the affairs of the 'nion or of a (tate8!
RESER3ATION FOR BAC4@AR9 CLASSES IN IN9IA:
#7
ARTICLE ()*+: This "lause )E+ expressl provides for the reservation of appointments or posts in favour of an ba"&ward "lass of "iti0ens whi"h$ in the opinion of the state is not ade1uatel represented in the servi"es under the state! ere the term state denotes both Central and state governments and their instrumentalities! The power "onferred on the (tate "an onl be exer"ised in favour of a ba"&ward "lass and therefore$ whether a parti"ular "lass of "iti0ens is ba"&ward$ is an ob#e"tive fa"tor to be determined b the state! In Indira Sawhney and Ors. s. Union of India and Ors. !"2 the Court observed that:.
The meaning of the expression 7ba"&ward "lasses of "iti0ens8 is not 1ualified or restri"ted b saing that it means those other ba"&ward "lasses who are situated similarl to ("heduled Caste and5or ("heduled Tribes! -a"&wardness being a relative term must in the "ontext be #udged b the general level of advan"ement of the entire population of the "ountr or the (tate$ as the "ase ma be!
There is ade1uate safeguard against misuse b the politi"al exe"utive of the power u5Art! 6)E+ in the provision itself! An determination of ba"&wardness is neither a sub#e"tive exer"ise nor a matter of sub#e"tive satisfa"tion! The exer"ise is an ob#e"tive one! Certain ob#e"tive so"ial and other "riteria have to be satisfied before an group or "lass of "iti0ens "ould be treated as ba"&ward! If the exe"utive in"ludes$ for "ollateral reasons$ groups or "lasses not satisfing the relevant "riteria$ it would be a "lear "ase of fraud on power!
Caste< neither "an be the sole "riterion nor "an it be e1uated with P"lassP for the
purpose of Arti"le 6 )E+ for as"ertaining the so"ial and edu"ational ba"&wardness of an se"tion or group of people so as to bring them within the wider "onnotation of Pba"&ward "lassP! Nevertheless P"asteP in indu so"iet be"omes a dominant fa"tor or primar "riterion in determining the ba"&wardness of a "lass of "iti0ens!
1# 6B (upp )+ (CC B6B
#1
'nless P"asteP satisfies the primar test of so"ial ba"&wardness as well as the edu"ational and e"onomi" ba"&wardness whi"h are the established and a""epted "riteria to identif the Pba"&ward "lassP$ a "aste per se without satisfing the agreed formulae generall "annot fall within the meaning of Pba"&ward "lass of "iti0ensP under Arti"le 6 )E+$ save in given ex"eptional "ir"umstan"es su"h as the "aste itself being identifiable with the traditional o""upation of the lower strata . indi"ating the so"ial ba"&wardness! And >Class< has o""upation and Caste nexus it is homogeneous and is determined b birth! It further approved C+'(),?+) ),@
*D+ Further in "ase of agish Negi v. State of =.P.t (8 Court held 7-a"&wardness is not a
stati" phenomenon! It "annot "ontinue indefinitel and the (tate is entitled to review the situation from time to time!8
PART III OF T&E CONSTIT=TION IN RELATION TO RESER3ATION IN P=BLIC SER3ICES: Arti"le 6E is in general terms whereas Arts! 6 and 6 are of spe"ifi" nature! (hortl put the "ombined effe"t of Arts! 6E$ 6 and 6 as far as publi" emploment is "on"erned$ is that the guarantee non.dis"riminator treatment of "iti0ens in matters relating to publi" emploment! Religion$ ra"e$ "aste$ sex$ des"ent$ pla"e of birth$ residen"e or an of them "annot be the basis for dis"rimination against a "iti0en in matters relating to publi" emploment or offi"e under the state! Reservation in favour of ba"&ward "lasses of "iti0ens is dealt with b "l! )E+ of Art!6! It is an enabling provision and is in the nature of a provision or an ex"eption to "l! )6+ of Arti"le 6 of the Constitution3
ARTICLE ()*+ AN9 ARTICLE 887 Artic!e 887: provides that 7the "laims of the members of the (Cs and (Ts shall be ta&en into
"onsideration$ "onsistentl with the maintenan"e of effi"ien" of administration in the
13 AIR 6M (C
##
ma&ing of appointments in servi"es and posts in "onne"tion with the affairs of the 'nion or of a (tate8! There has been some debate as to whether Art! had an limiting effe"t on the power of reservation "onferred b Art! 6 )E+! The nine #udge ben"h of the (upreme Court in I%&'() S)*+%,- "onsidered the argument that the mandate of Art! implied that reservation should be read sub#e"t to the 1ualifi"ation engrafted in Art! i!e! "onsistentl with the maintenan"e of effi"ien" of administration! Dealing with the argument ma#orit framed an issue as to whether reservations were anti.meritarian3
The ma#orit then observed that ma be
effi"ien"$ "ompeten"e and merit are not snonmous "on"epts ma be it is wrong to treat merit as snonmous with effi"ien" in administration and that merit is but a "omponent of the effi"ien" of an administration! 9ven so the relevan"e and signifi"an"e of merit at the stage of initial re"ruitment "annot be ignored! It "annot also be ignored that the ver idea of reservation implies sele"tion of a less meritorious person! At the same time$ we re"ognise that this mu"h "ost has to be paid$ if the "onstitutional promise of so"ial #usti"e is to be redeemed! 2e also firml believe that given an opportunit$ members of these "lasses are bound to over"ome their initial disadvantages and would "ompete with.and ma in some "ases$ ex"el members of open "ompetitor "andidates! It is undeniable that nature has endowed merit upon members of ba"&ward "lasses as mu"h as it has endowed upon members of other "lasses and what is re1uired is an opportunit to prove it! -ut in "ase of Arti"le 6$ Arti"le would be relevant! It ma be permissible for the government to pres"ribe a reasonabl lower standard for s"heduled "astes5("heduled tribes5ba"&ward "lasses "onsistent with the re1uirements of effi"ien" of administration! It would not be permissible not to pres"ribe an su"h minimum standard at all! 2hile pres"ribing the lower minimum standard for reserved "ategor$ the nature and duties att a"hed to the post and the interest of the general publi" should also be &ept in mind! 2hile on Arti"le $ we are of the opinion that there are "ertain servi"es and positions where merit alone "ounts! In su"h situations$ it ma not be advisable to provide for reservations! For example te"hni"al
post
in Resear"h
and Development
organisations5departments5institutions$
superspe"ialities in medi"ine$ engineering et"!
CENT PERCENT RESER3ATION NOT PERMISSIBLE: #3
No ce%t 'erce%t reservatio%
The state is not entitled to ma&e a "ent per"ent reservation! That would be violative of Art!6 of the Constitution! The (upreme Court has ruled time and again$ that where there is no onl one post in the "adre$ there "an be no reservation for the ba"&ward "lass with referen"e to that post either for re"ruitment at the initial stage or filling up a future va"an" in respe"t of that post otherwise the same would amount to 6 per "ent reservation! A single promotional post "an also not be reserved!
6E
A''!icatio% of Rotatio%a! R#!e
In "ase of #ost $rad%ate Instit%te of Medical d%cation & Research' (handigarh !) it has been "ategori"all stated that unless there is pluralit of posts in a "adre$ the 1uestion of reservation will not arise be"ause an.attempt at reservation b whatever means and even with devi"e of rotation of roster in a single post "adre is bound to "reate 6 reservation of su"h post whenever su"h reservation is to be implemented!
ETENT OF RESER3ATION
The eGte%t of reservatio% sho#! %ot eGcee 7?H
In I%&'() S)*+%,- ), +, ma#orit pointed out that "l! )E+ of Art! 6 spo&e of ade1uate representation and not proportionate representation.although the proportion of population of ba"&ward "lasses to the total population would a relevant fa"tor! After referring to the earlier de"isions of the Court$ the ma#orit "on"luded that the reservation "ontemplated in "l! )E+ of Art! 6 should not ex"eed ! It also pointed out that for the purpose of appling the rule of $ a ear should be ta&en as the unit and not the entire strength of the "adre!
1$ an"ha Ilaiah$ %erit of Reservations$ 9"onomi" and *oliti"al 2ee&l$ /une 6M$ B
15 6G )E+ (CC 6
#$
CONCEPT OF CREAM; LA;ER:
In the M)%&) /22''/% ), the (upreme Court has "learl and authoritativel laid down that the so"iall advan"ed members of the ba"&ward "lass$ the 7"ream laer8$ has to be ex"luded from the ba"&ward "lass and the benefit of reservation under Arti"le 6)E+ "an onl be given to a "lass whi"h remains after the ex"lusion of the 7"ream laer8! This would more appropriatel serve the purpose and ob#e"t of Arti"le 6)E+! At present$ the benefits of #ob reservations are most "hewed up b the more effluent se"tions of the ba"&ward "lass and the benefit of the reservation poli" is not being per"olated to the poor and the reall ba"&ward "lass amongst them whi"h ma&es them poorer and more ba"&ward! (o$ the government must give effe"t to the observation made m (upreme Court in %andal "ase in order to a"hieve so"ial and e"onomi" #usti"e for the whole se"tion of ba"&ward "lasses!
Co%c!#sio%: It was ver valid and "onsiderable on the part of the framers of our "onstitution to ma&e su"h provisions when India as a "ountr was going through not onl internal but man external problems! The situation at that time demanded India to be united in power$ "ulture and edu"ation so that we have greater 1ualit strength to fight ba"& the odds of the so"iet! -ut it has almost been more than sixt ears from the ear when India finall got its freedom! 9ven toda we find that these reservations are existing and due to this perhaps the E-#a!it" co%ce't is getti%g vio!ate i% o#r co#%tr" where we find that there is massive misuse of
power and the privileges that has been provided in order to ma&e our "ountr a better pla"e to live in! %a#oritarianism is a "ommon vi"e that persists in a demo"rati" so"iet! As the government is "hosen b the ma#orit and ever de"ision that is ta&en depends upon the ma#orit vote$ the law tends to favour this ma#orit! -ut there are different was of identifing this ma#orit. edu"ated people$ e"onomi"all and so"iall powerful people$ people of the forward "aste$
#5
indus$ males$ et"! some of these "lasses might overlap but the essen"e remains the same! These are the people who ma&e the law and whom the law favors! owever$ in India$ the "onstitution ma&ers wanted to avoid this situation of hierar"h and ma#orit rule! A true demo"ra" is established when all people have the same abilit to ma&e the de"isions regarding the government! For this reason the reservation poli" is adopted to bring this e1ualit in thought and goals! Reservations b themselves are not unfair$ but the be"ome so when the ground for distin"tion loses its "redibilit! In "ase of India$ that is what is happening$ be"ause (C
BIBLIO
-!*! %andal! The %andal Commission Report$ 6G!
-abasaheb Ambade&ar : writings and spee"hes
Dharma umar! The Affirmative A"tion Debate in India!
;overnment ,f India! National Commission for -a"&ward Classes$ B6!
*aswan$ (an#a /aideva$ H-!R! Ambed&ar: %essiah of Dalits! Delhi: alpa0 *ubli"ations!
(adana$ Rashmi$ 7The *oliti"s of Caste IdentitH! The Cambridg Companion to %odern Indian Culture! Cambridge 'niversit *ress!
#%
-asu$ Durga Das )BG+! I%(/&'/% / +, C/%''/% /0 I%&')! Nagpur: LexisNexis -utterworths 2adhwa! Las&ar$ %ehbubul assan! HRethin&ing Reservation in igher 9du"ation in IndiaH! ILI Law Review! /aathi ;osh$ Case for Caste.based Ouotas in igher 9du"ation$ 9"onomi" and *oliti"al 2ee&l$ /une 6M$B
?ain 0 MP0 @"n+ian 9onstittional Law0 a+*wa an+ 9om/an60 Na/r0 !olme #.Plications0#717
(ingh ranbir$ Nath A la&shmi$ 7 Constitutional Law 7LexisNexis butterworths8 $ 6 st
9dition B! -a&shi$*%$8The Constitution of India8$'niversal Law *ublishing Co!$New Delhi$6B th edition B6
#&
