The framers of the Indian Constitution were aware that in order to bring up the two class of society at an equal position, they need to have rules and regulations.
These rules and regulations came in the form of reservation, offered to people of India on the basis of caste & financial condition. And this led to the beginning of the history of reservation in India.
The reservation has been justified several times by the Democrats by reading out the lines from the preamble - “Justice, social, economic & political” & “Equality of status & of opportunity”.
They have emphasized that the drafting committee of the Indian Constitution simply wanted to treat every citizen equally in terms of opportunity & status because, at that time when India gained Independence, there weren’t so much stability for the backward classes.
Equality in the Indian Constitution by Way of Reservation
‘Just as equals cannot be treated unequally, unequal cannot be treated equally’
Indian reservation history has three very important articles to be noted. These are Article 14, Article 15 and Article 16, of the Indian Constitution. These are the pillars of reservation granted in India.
Article 14, Right to equality & Article 15, Right against discrimination, are linked to each other. If there exists any kind of equality, then it should be implemented without any discrimination on the basis of caste, creed, sex, and other unsuitable criteria.
The framers of the Indian Constitution had that vision to ensure that each and every citizen shall get equal status as well as opportunity, in higher education & employment. Thus, reservation in India became an important subject.
Reservation in Higher Education
The people, who are backward by birth, are given different government policies to cope up with the society. To implement this, the government had already amended Article 15(5), which holds down that the people belonging to SC/ST had to give a certain percentage of reservation.
Therefore, such a reservation in the field of higher education was offered to the students, so that they can be treated equally and granted higher education. The reservation history puts this forward as a move for harmonious growth of the entire society.
Reservation in Public Employment
On the other hand, Article 16, talks about the reservation in the field of employment, where the word ‘employment’ is confined to the “public employment” (State instrumentalities, PSU’s etc.) till now.
“Equality may be a fiction but nonetheless one must accept it as a governing principle.” ― Bhimrao Ramji Ambedkar
It was the thought of narrow domestic wall that, if a person belonging to SC/ST trait reaches the peak, with his/her hard work then also he does not get such respect & fame. Thus, seats were reserved for people from SC/ST classes in the public sector.
This is a very important reason to add on the reservation in Article 15 & 16 from the beginning of the enactment. It was also said by Dr. B. R. Ambedkar that if a person of lower caste climbs up the ladder will fall down on the floor because of the societal backwardness caste.
In a nutshell, the reservation history viewed this act as protection against loss of work.
Turning Point in Reservation History of India
After granting reservation to the SC/ST population, the subject of granting reservation became a political mantra to fetch votes from the people in India. This led to a turning point in the reservation history of India.
Other Backward Classes (OBC) also wanted themselves to be recognized as the injustice trait of the society, to plea for the reservation in higher education & employment. They placed forward the request to acknowledge them as minorities and give them special benefits.
Thus, the Kaka Kalelkar Commission was appointed by the then President, on 29th January 1953, with Kaka Kalelkar as its chairman. The Commission was directed to determine the list of the classes, to investigate the conditions of all such socially & educationally backward classes, to determine the criteria to be adopted for this backwardness.
The following criteria were suggested by the commission for determining the backwardness in India:
- Low social position in the caste hierarchy
- Lack of educational progress
- Inadequate representation in government service
- Inadequate representation in the fields of trade, commerce, and industry
Clearly, caste was taken as the key factor in making a list of backward classes, who were to be granted reservation in India. However, the Commission did not have adequate data on castes.
Yet it proposed reservation of at least 25 percent in Class I, 33.5 percent in Class II, and 40 percent in Class III and IV services for the castes listed as backward.
It recommended 70 percent reservation in the fields of medical, scientific and technical education. The commission also pushed up to form the separate ministry for the welfare of backward classes.
The reservation was totally based on the upper or higher and lower or inferior grounds. There were no such efforts to analyze the backward classes individually.
Thus, the government of India rejected the report by commission citing that ‘caste as the basis for identifying economic & educational backwardness’ is not right. Up till now, the reservation laws were only for SC & ST communities.
In 1961, the Centre decided not to draw up any list of the OBCs. The states were advised to draw up their own lists using economic tests rather than going by caste.
Mandal Commission was the initiative by ‘Janta Party’ (Now merged in BJP), where the party promised to reserve between 25 & 33 percent of all appointments to government services and educational opportunities for the backward classes.
It appointed a ‘Backward Classes Commission’ under the chairmanship of B.P. Mandal, Member of Parliament. The Janta Party, in its election manifesto in 1977, called for an end to caste inequalities. The party promised a ‘policy of special treatment’.
Reservation policy of the commission was based on the 11 criteria which can be confined into three main criteria of, social, educational & economic. That means there are 11 criteria to identify the OBC’s in society.
In December 1980, the Mandal Commission submitted its report. By then, Janta Party has fallen down. The Indian National Congress government, led by Indira Gandhi & Rajiv Gandhi, declined the report due to politically contentious nature.
After being neglected for 10 years, the report was accepted by the National Front Government led by V.P Singh. On August 7, 1990, the government provided the reservation of 27% to “socially & educationally backward classes”.
In September 1990 the report was brought to Hon’ble Supreme Court of India, by Indra Sawhney, challenging the constitutional validity of the report. The three key points of the petition were
- The extension of reservation violated the Constitutional guarantee of equality of opportunity.
- Caste was not a reliable indicator of backwardness.
- The efficiency of public institutions was at risk.
The nine-judge bench of Supreme Court issued a stay on the implementation of the report. On 16 November 1992 the Supreme Court, in its verdict upheld the government order. Thus, the court found that caste was a suitable reason for the indicator of backwardness.
Supreme Court upheld the Mandal Commission’s 27 percent quota for backward classes, as well as the principle that the combined scheduled-caste, scheduled-tribe, and backward-class beneficiaries should not exceed 50 percent of India’s population.
At the same time, the court also struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes. Since this was struck off, it has to become an agenda in the reservation history of India.
Recurring Demands for 10 Percent Reservation
Mayawati of Bahujan Samaj Party (BSP) rode to power in Uttar Pradesh in 2007. She demanded reservation in jobs for the poor belonging to the upper caste, and the Congress, as well as the BJP, supported the demand.
Before 2014 Lok Sabha polls, Samajwadi Party too promised to set up a Savarna Ayog or upper caste commission to address the issues faced by the community, including reservation for the poor among them.
Chief Minister N Chandrababu Naidu had indicated in 2016 that Andhra Pradesh government could soon extend reservation for poor among upper castes.
“We will conduct a survey, based on that we will have no objection to extending reservation benefits to the economically-backward among the upper castes”, he said.
Amendment for 10 Percent Reservation
The bill for 10 percent amendment has to be passed in both the house of the parliament and then for the assent of the President, to become a law. No other proceedings are required for granting 10 percent reservation to the socially backward people in the upper class.
Unlike other bills, the bill needs not to be passed by the 50% consent of the state because Article 368 of Constitution of India, 1949 state that, “Power of Parliament to amend the Constitution and procedure therefor”
If there is any such amendment regarding Part III, fundamental rights, then there is no need of ratification by the state legislature. It is observed, that, by the amendment of Article 15, where sub-clause (5) has been introduced without any kind of rectification by state legislature.
“The Parliament introduced Article 15(5) by The Constitution (Ninety-Third Amendment) Act, 2005 to enable the State to make such provision for the advancement of SC, ST and Socially and Educationally Backward Classes (SEBC) of citizens in relation to a specific subject.”
The article deals for the aided as well as the non-aided institution. This gave an edge to the ruling party for introducing this bill in the Parliament.
Introduction of ‘Bill of Equality’
It is seen that the Hon’ble Supreme Court had imposed a cap of 50% of reservation, which cannot be exceeded. Many of the states have been trying to give away the reservation by either notification or by passing an act, which when challenged in the Supreme Court is being struck down.
In September 1991 P V Narasimha Rao government proposed a 10 percent reservation for such sections, however, failed to implement.
Gujarat government has also attempted to do so by making an ‘Act’. But the governments failed to provide the source to exercise the power. However, the sources were nothing but the provisions of Article 15 & 16.
The amendment bill introduced will not violate the judgment passed by Hon’ble Supreme Court as; the Court clearly imposed the cap of 50% of reservation in the purview caste not on the economically backward grounds.
Article 16(4), was the core restriction imposed by the court. The reason behind this 50% of reservation held by the Supreme Court was to uplift the weaker (on the basis of caste) section, and if this exceeds then there will arise of ‘Reverse Discrimination’.
It will make the imbalance in society on the basis of caste. The main objective of the ‘Bill' is to give 10% reservation in jobs & higher education for those belonging to economically backward people in the unreserved category.
Tamil Nadu has a law which provides for 69% reservations, which has been inserted into the ninth schedule of Constitution to immunize it from judicial review.
In this way, the reservation history of India has seen several attempts to grant more reservation under various names. However, the proposed for 10 percent reservation bill has a set criterion to be fulfilled.
The bill imposed the following criteria to be fulfilled to attain 10% of reservation:
- Their Annual income is below 8 Lakh.
- They own agricultural land of fewer than five hectares.
- They own house smaller than 1,000 sq. ft.
- They own residence plot below 109 yards in notified municipality area.
- They own residence plot below 209 yards in non-notified municipality area.
In order to gain benefits against 10 percent reservation bill, one needs to qualify the above criteria. So, this is the most recent addition to the reservation history of India.
Let us wait and watch if this bill becomes a law. And if at all this bill becomes a law, will it benefit anyone?
I am still wondering – is it a bold move or an election gimmick?