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Context

• In the recent EWS judgment by the Supreme Court, Three judges on the Constitution Bench said the policy of reservation in education and employment cannot continue for an indefinite period.
• The statement made highlights the issue of reservations in India. Therefore, this edition of the burning issue will analyze the issue of reservations in India, its future, challenges and way forward.

About the Reservation Policy of India

• Reservation is a system of affirmative action in India that provides for historically disadvantaged groups.
• The legal origin of the Reservation Policy in India began with the lying down of the Government of India Act, of 1919, and the Communal award in 1932.
• Post-independence, based on provisions in the Indian Constitution (Article 15, Article 16 and Article 335), it allows the Union Government and the States and Territories of India to set reserved quotas or seats, which lower the qualifications needed in exams, jobs openings, university admissions, scholarships, promotions, etc. for “socially and educationally backward citizens.
• Reservation is primarily given to all 4 groups: Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Economically Weaker Section, abbreviated as SC, ST, OBC, and EWS respectively. Originally only SC and ST communities were eligible for reservation.
• In 1987, it was extended to include OBCs after the implementation of the Mandal Commission report. In 2019, the reservation was extended for the Economically Weaker Section within the General Category, however, all the categories mentioned receive different monetary values for their reservation: usually SC, and ST draws higher quota or benefits, then OBC, then EWS.

Constitutional provisions regarding the reservation

The Constitution of India lays down certain provisions regarding the reservation in India, namely:

• Article 15(4) of the Indian Constitution states that the State has the right to make special provisions for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.
• Article 15(5) of the Indian Constitution states provisions created for the reservation of SC, ST, and Backward classes in private educational institutions.
• Article 16(4) of the Indian Constitution states that the State has the right to make provisions for the reservation to provide adequate representation of all the castes in Government services.
• Article 330 and 332 of the Indian Constitution provides for specific representation through the reservation of seats for SCs and STs in the Parliament and the State Legislative Assemblies respectively.

Current situation of reservations in India

• Currently, Reservation is given to different categories of applicants in educational institutions or government jobs.
• Scheduled Castes get 15%, Scheduled Tribe -7.5%, Other Backward Class (OBC) -27%, Economically Weaker Sections (EWS)-10%, and Persons with Benchmark Disabilities get 4% reservation.
• From above, it is clear that 60% reservation is given to various categories such as SCs, STs, OBC, and EWS with respect to government jobs and educational institutions.
• Initially, the reservation was provided based on social and educational backwardness. But, after the 103^rd Constitutional Amendment of 2019, economic backwardness was also considered for reservation.
• Every state has the right to reserve certain seats for underprivileged people. The state-wise distribution of reservations varies from state to state. For example, The total reservation in Maharashtra State was 52%, Tamil Nadu has 69% reservation etc.

The biggest debate related to Reservations: Should reservations continue?

Yes, it should!

• The low representation of Reserved communities: According to data presented by the Education Minister in the Rajya Sabha, in Indian Institute of Science (IISc) Bengaluru, only 2.1 per cent of candidates admitted to the Ph.D. programs were from the ST category, 9 per cent were from SC and 8 per cent from OBC categories from 2016-2020. Most of the IITs do not have a single professor from the SC/ST community.
• Still lack equal opportunity: Even though India is progressing, still there is a need to provide reservations to certain classes of society. It is the duty of the government to provide equal opportunity and status to unprivileged people. Even today many people belong to the lower caste and do not have access to equal opportunity and status.
• Discrimination continuing: the real purpose of introducing reservation was to break the age-old caste prejudices and discrimination against the reserved communities. But, Even after years of independence, the lower caste people are looked upon in the same way they were some years ago. Great caste discrimination still exists in rural areas.
• Gives a Level Playing field: Reservation provides a level playing field as it is difficult for the backward sections who were historically deprived of education, skills, and economic mobility to suddenly start competing with those who had access to those means for centuries.

• Reducing opportunities for reserved community: since LPG reforms, the privatization of PSU and the education sector has led to reduced opportunities for the reserved communities due to a lack of reservation in the private sector hence reservations in public institutions seem to be a tool to compete with general category candidates.

The flip side. Reservation should not continue!

• Causing a “race to backwardness”: the reservation policy has led to race among several new communities, even dominant regional caste groups to demand reservations in government jobs and educational institutions.   
• Becoming redundant: Reservation through a caste-based system has become redundant in the modern age and is taking away opportunities from those who are underprivileged in economical terms.
• Strengthening casteism: Moreover, the reservation system only divides the society leading to discrimination and conflicts between different sections since it is oppressive and does not find its basis in casteism. It is promoting casteism in India.
• Ever widening quotas: with new castes, categories and tribal communities being added to the list the beneficiaries of the reservations, the quantum of the reservation is increasing year by year, breaching the 50% quota limit set by SC in the Indira Sawney case.
• Loss of original purpose of reservations: According to Surith Parthasarthy, Advocate Madras HC, the reservation policy today has lost its original purpose to end the prejudice against certain communities and correct historical injustice. But today it has become a tool to gain public employment and seats in public educational institutes.
• Reservation is not a fundamental right: It is a settled law, time and again reiterated by the Supreme Court, that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution. Rather they are enabling provisions for providing reservation if the circumstances so warrant (Mukesh Kumar and Another vs State of Uttarakhand & Ors. 2020).

• An inefficient system: TheJustice G. Rohini Commission’s report concluded that 97% of central OBC quota benefits go to just under 25% of its castes. As many as 983 OBC communities — 37% of the total — have zero representation in both central government jobs and admissions to central universities. Also, the report states that just 10% of the OBC communities have accrued 24.95% of jobs and admissions.

• Opening pandora box: the reservation issue is giving rise to new challenges like the demand for caste census, the definition of creamy layers, reservation in the private sector, domicile-based reservations etc.

Important Supreme Court cases related to Reservations

Indra Sawhney Judgment (1992)

• In the judgment, a nine-judge bench presided by CJI MH Kania upheld the constitutionality of the 27% reservation.
• But it put a ceiling of 50% unless exceptional circumstances warranted the breach so that the constitutionally guaranteed right to equality under Article 14 would remain secure.
• While Article 16(1) is a fundamental right, Article 16(4) is an enabling provision and not an exception.
• Further, the Court directed the exclusion of the creamy layer by way of horizontal division of every other backward class into creamy layer and non-creamy layer.

M. Nagaraj (2006) Case

• A five-judge bench of the Supreme Court declared the 1995 amendment as not vocative of the basic structure of the Constitution.
• It laid down certain conditions which included the collection of quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment.
• The bench held that the creamy layer among SCs and STs is to be excluded from the reservation.

Jarnail Singh vs Lachhmi Narain Gupta (2018)

• It was authored by Justice Rohinton Nariman and indicates a critical turn in the jurisprudence of reservation.
• In this case, a constitutional bench of the Supreme Court was called on to examine the wisdom of the 2006 judgment.
• This task was to examine the constitutionally recognized socio-economic backwardness of the SCs and STs which may not require any further substantiation.
• It was also contended that the requirement to identify creamy lawyers among SC and STs fell foul of Indra Sawhney’s decision.
• The constitution bench invalidated the requirement to collect quantifiable data in relation to SCs and STs.
• It upheld the principle of applicability of creamy lawyers in relation to SCs and STs.

Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021)

• Despite the Indra Sawhney ruling, there have been attempts on the part of many States to breach the rule by way of expanding reservation coverage.
• The Maharashtra Socially and Educationally Backward Classes Act 2018, (Maratha reservation law) came under challenge before the Supreme Court.
• This case was referred to a bench of five judges to question whether the 1992 judgment needs a relook.
• Interestingly, the Supreme Court affirmed the Indra Sawhney decision and struck down Section 4(1)(a) and Section 4(1)(b) of the Act which provided 12% reservation for Marathas in educational institutions and 13% reservation in public employment respectively.
• This judgment gave out a strong message that some State governments blatantly disregard the stipulated ceiling on electoral gains rather than any exceptional circumstances.

What is needed right now- Reforms!

• Evidence-based policy option: We need to develop a wide variety of context-sensitive, evidence-based policy options that can be tailored to meet the specific requirements of specific groups.
• Institution: We need an institution like the Equal Opportunities Commission of the United States or the United Kingdom which can undertake two important but interrelated things: Make a deprivation index correlating data from the socio-economic-based census of different communities. And Undertake an audit on the performance of employers and educational institutions on non-discrimination and equal opportunity and issue codes of good practice in different sectors.
• This will make the formulation of policy and its monitoring simpler at an institutional level.
• Similar suggestions were made a decade ago in the recommendations that the expert committee for an Equal Opportunities Commission (2008) made in its comprehensive report that it submitted to the Ministry of Minority Affairs.

Conclusion

• The policy of reservation can be fair and effective if it acts as affirmative action for the benefit of the backward sections of society. To meet the aim of the reservation policy, its aid should reach the majority of the population which is considered an underprivileged section of society.
• In the present time, there is a need to revise the reservation policy of India so that the benefit can reach the marginalized sections of the deprived classes. But while revising the reservation policy, we must ensure that the benefit of the reservation should reach the socially, economically, and educationally backward sections of society. Social, educational and economic criteria should be taken cumulatively to determine the backward classes of the society.

As Justice Ravindran in the Ashok Kumar Thakur vs Union of India case rightly said, “When more people aspire for backwardness rather than of forwardness, the country itself stagnates”.