Indian Government & Policies Reservation in India

Ques. Indian Government & Policies Reservation in India

Answer

Reservation policy in India needs urgent reforms to ensure its intentions and objectives are met. Examine the main issues surrounding reservation policy in India and ways to rectify the same.

• • • According Ashok Acharya, Reservation/ affirmative action may be defined as ‘a formal effort to provide increased employment and educational opportunities for underrepresented and disadvantaged groups at a level sufficient to overcome past patterns of discrimination and present structural inequalities.’
    • The colonial policy of ensuring representation rights to different communities was a crude precursor to affirmative action policies in post-Independence India. Andre Beteille writes how the colonial policy differed from the Constitutional scheme in post-independence India. Two principles round the colonial policy:
      • the policy of balance between competing communities, or interests;
      • the policy to divide the nationalist front by creating differences.
    • On the other hand, reservation in the Indian Constitution was seen as a weapon to ensure social justice for the socially and educationally marginalized sections of Indian society. Marc Galanter has called this a compensatory discrimination principle.
    • As means to rectify historical injustice accorded to certain communities and sections of people, the Constitution broadly provides for three types of preferences (Iris Marion Young- ‘Group Differentiated rights’):
      • First are special representation rights of SCs and STs by way of reserved seats in Parliament and state legislatures as per Articles 330, 332, and 334. The Seventy-third Amendment to the Constitution also provides for reservations in local representative bodies such as panchayats and municipalities for SCs, STs, women. 
      • The second is reservation in educational institutions as per Article 15(4), and now (5). Article 15(4) permits ‘special provision’ for SCs, STs, and ‘socially and educationally backward classes’ except in linguistic or religious minorities institutions which enjoy autonomy under Article 30. 
      • Lastly reservation in public employment as provided by the Constitution under Articles 16(4) for SCs, STs, and ‘Backward Classes’, and 335 for only SCs and STs.  103rd amendment act adds the new clause (6) to Articles 15 and 16 allows 10% reservations in educational institutes as well as in appointments or posts under the state for economically weaker section.

    Issues with reservation policy

    • As Gail Omvedt remarks, “the whole history of the struggle for reservation has also been a debate about its very meaning and purpose”.
    • Economic criteria for reservation:
      • The coming in of the 103^rd amendment act providing reservation for the economically weaker sections has raised questions regarding the purpose of policy which initially as per the Constitution was meant to provide substantiative equality to the socially and educationally backward rather than the economically deprived. Omvedt has pointed out, the strategy behind reservations could never have involved an attack on pure economic backwardness. The idea was always to disavow caste-monopoly in the public sector.
    • Reservation for transgenders:
      • The Supreme Court of India in NALSA case recognised the rights of transgender people in India and laid down a series of measures for securing transgender people’s rights by mandating reservations for transgender people in educational institutions and jobs. However, the 2019 Act does not provide for reservations.
    • Issue of backwardness:
      • Vijay Sitapati argues that controversy is regarding the third category that is of Other Backward Classes. Unlike SCs and STs, OBCs are not a distinct social group. The Mandal commission report recommended 27% reservation quota for OBC. 
      • In the Indira Sawhney case, the Supreme Court upheld separate reservation for OBC in government jobs, but excluded these to the ‘creamy layer’. It further ruled that at no point should the reservation exceed 50%. 
      • The debate has arisen again with respect to cornering of benefits by certain communities with demands for sub-categorisation which has been taken up by Justice Rohini Commission. 
    • Issue of Creamy Layer:
      • One uncertainty over the creamy layer doctrine is whether it applies only to OBCs, or to SCs and STs also. A five-judge bench in the Nagaraj case—dealing with SC/ST quotas—had stated that the creamy layer concept was part of the constitutional principle of equality. But a later Court in Ashoka Kumar Thakur has held that the creamy layer does not apply to SCs and STs.
    • Issue of quantifiable data: 
      • There is a major debate regarding the actual state of backwardness of certain castes, and their numerical percentage. The Court while striking down OBC reservation for Jats asserted that outdated statistics (like use of 1931 census by Mandal commission) can’t be used to establish backwardness.
      • The Madras High Court’s 2021 verdict of quashing the 10.5% special reservation for Vanniyars within the overall 20% quota for Most Backward Classes (MBC) and Denotified Communities (DNC) has again highlighted the importance of quantifiable data as a prerequisite for reservation in education and employment.
    • Issues in promotion: 
      • While in the Rangachari case, the Court held that the Constitution permitted reservations not only in entry-level posts but also in promotions, this position was reversed in the Indira Sawhney case. But, 85th amendment act was passed to provide consequential seniority to reserved candidates. In the Nagaraj judgment the judiciary held these promotion amendments to be valid. But it also held that every particular policy of the State with respect to reservations in promotions will have to demonstrate backwardness, inadequacy of representation, and maintenance of efficiency
      • In a 2020 judgment regarding reservation in promotion in Uttarakhand, the Supreme Court observed that reservations in promotions was not a fundamental right. It held that Article 16(4) of the Constitution is only an enabling provision.
    • Reservation in private sector:
      • The Supreme Court had initially, in the TMA Pai Foundation case, held that mandating reservations in private colleges was unconstitutional. This was rectified by the 93^rd constitution amendment act. 
      • Ashwini Deshpande and Katherine Newman point to research that states that private sector employers discriminate on the basis caste while selecting employees. 
      • Opponents of reservations in the private sector, on the other hand, argue that there is no systematic caste discrimination in the profit-driven private sector with merit being the crucial criteria.
      • They further argue that private sector is not obligated to carry the constitutional burden of affirmative policies. More crucially, they argue, such a move could harm the growth prospects and the global competitiveness of Indian industry.
    • Various suggestions have been put forward to rectify these issues. Yogendra Yadav argues for a new methodology based on multi-layered deprivation index based on four parameters- 1. Intellectually sound; 2. Administrative and Financial viability; 3. Politically defensible and lastly 4. Morally justiciable. 
    • S. Thorat supports legal protection against discrimination in the form of Equal Employment Opportunity Laws. He also makes a case for reparation or compensation to make up for past injustices.
    • The Sachar committee had recommended the constitution of an ‘Equal Opportunity Commission’ to look into the grievances of deprived groups, and that the idea of providing incentives for diversity.
    • The Kundu Committee Report (2008) recommended the constitution of a Diversity Commission to oversee the incentivization of diversity in education institutions, employment establishments and housing societies. The proposed ‘diversity index’ is sensitive to religion, caste and sex.
    • Beteille recommends the government should encourage private companies to devise their own programmes of affirmative action through tax concessions for diversity, which eventually will be in the long-term interest of the companies, and not just in the public interest.
    • S.S. Jodhka has pointed to instance of providing for sub-quotas by Punjab and Andhra Pradesh which can be further studied. Accordingly, government constituted a four-member commission headed by retired Delhi High Court Chief Justice G. Rohini.
    • As made clear by the Court, quantifiable data is required for providing any form of quota in favour of any community because the Constitutional stipulation of adequate representation in the services has to be met along with that of social and educational backwardness for any community to become eligible for reservation in employment.
    • The policy of reservation in its myriad forms and manifestations, with all other enabling and empowering constitutional provisions, implemented and monitored honestly, can be an effective strategy to ensure faster, inclusive and more equitable growth as well as fulfil the Constitutional goal of fostering a social revolution in India.