Reservation in India: What Does the Constitution Say?

Parliament sessions are always a hectic time, but this one has been even more so with a number of critical Bills listed for passage. The most important so far has been the decision to create a 10% quota for the economically weaker sections with the General Category in jobs and higher education.

 

Now before we comprehend what the proposed law might do, we need to go back in history and understand the context for reservations in India. What is the objective of reservation? How has the policy evolved over the years? What are the provisions of the new law? What are the concerns associated with the law and the process of its passage? What does it mean for the future of reservations in India?

 

What is the Basis of Reservation in India?

 

Article 15 of the Constitution defines a fundamental right of all citizens of India - “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. However, in recognition of the vast inequalities existing in India at the time - driven by centuries of unequal distribution of benefits to different classes of society, the government thought it would be prudent to create an exception to the above Fundamental Right. Subsequently a clause was added to article 15 by the Constitution (First) Amendment Act in 1951 to allow the state to make special provisions - the text of the clause being “Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.” This cleared the way for the government to enact laws as required to provide reservation (i.e. a special benefit on the basis of caste, which was explicitly prohibited by Article 15 alone). This forms the historical and legal basis of reservation in India. This was pushed a little further in 2005, when the government added another clause which allowed reservation for backward classes in private educational institutions as well. More details here.

 

Right after Independence, moves were made to ensure social justice and provide equal opportunities to the most “backward” people in our country - these were historically the Scheduled Castes and Tribes who were the primary victims of untouchability and caste pollution practices. In 1954, to further the country’s affirmative action practice, a 20% reservation in educational institutions funded by the state was created. This was subsequently raised to 22.5% and also included jobs in Central Government institutions. Another important aspect - the affirmative action quotas are only binding for Central Government-funded educational institutions and Central Government jobs. The states are free to enact their own laws regarding affirmative action, and decide which sections get affirmative action benefits. Check the list of states and their distribution of the quotas by various classes here. Hence the frequent agitations over the last year (Gujjars in Rajasthan and Marathas in Maharashtra) to be added to the list of social and educationally backward classes and become eligible for reservation.

 

Reservation in India: What Does the Constitution Say?

 

What are the “Socially and Educationally Backward Classes” that the Constitution Defines?

 

The Constitution does not list any socially and educationally backward classes. This is left to the government of the day to notify. Consequently, from time to time the Central and State governments can create and update lists of castes which are supposed to benefit from reservation.

 

This also led to the next phase of India’s affirmative action politics - popularly called the ‘Mandal politics phase’. This began in 1979, when the Morarji Desai-led Janata party government appointed a Commission led by BP Mandal to examine the need for affirmative action for “the socially or educationally backward classes" of India. The Commission recommended that other socially and educationally backward castes which formed ~ 50% of the population also need affirmative action and they should get an additional reservation of 27% of the seats in Central Government jobs and educational institutions. The report was finally implemented in 1990 by the VP Singh government, but not before widespread student protests. That was a different time in pre-liberalization India, where the only real hope of a job was with the Central Government, hence the anger.

 

Reservation is allowed for SCs, STs, OBCs (who SCs, STs, OBCs are, is defined by the government) only in Central Government funded higher educational institutions and Central Government jobs. For OBCs, only those whose parents are not gazetted officers of various grades in the Central Government, armed forces, or PSUs, or those whose family’s annual income is below INR8L are eligible i.e. for OBCs there is a stringent criterion which removes the so called ‘creamy layer’ from the benefits of reservations. There are no such economic criteria in the case of SCs or STs.

 

Why is the 10% Reservation Likely To be Challenged in the Supreme Court and be Struck Down as Unconstitutional?

 

This relates to a Supreme Court judgement called the Indra Sawhney judgement. The government’s implementation of the 27% reservation was challenged as being unconstitutional and against Article 15 of the Fundamental rights. However, the Court upheld the 27% reservation as valid, and further dictated that the total reservation cannot exceed 50%. The current numbers are 15% SC, 7.5% ST, and 27% OBC. Interestingly this judgement also struck down another government order which mandated 10% reservation for “economically backward sections of the people” maintaining that solely economic criteria cannot be used to determine which are backward sections of the population to benefit from reservation - effectively ending attempts for economic based reservation.

 

So What Does the Recently Passed Constitutional Amendment Say?

 

The amendment explicitly adds more clauses to Article 15 and Article 16 of the Constitution to allow the state to a) create criteria to define economic backwardness (the current clause in Article 15 relates only to social and educational backwardness) and b) provide for reservation for such identified economically backward classes, upto a maximum of 10%. These are of course in direct contravention of the Supreme Court judgment above. Predictably the amendment has already been challenged in the Supreme Court. Expect it to go through a long cycle and probably end with a decision by a 9-judge bench.

 

The first two pages of this PRS research PDF tells you what exactly the changes are. The Amendment has now been signed by the President of India and is law. Now the government has defined the economic criteria of annual family income of INR8L for benefiting from this reservation. This quota will be applicable to people who are outside the benefits of the 49.5% - essentially non-SC, non-ST, and non-OBC. This is not restricted by religion or caste and is applicable only on the basis of economic criteria.

 

What are the Concerns with this Law?

 

First, the manner in which the law was passed. Passing laws, especially Constitutional Amendments is a rather long-drawn out process, involving readings of Bills, circulation to the members of the Lok Sabha and Rajya Sabha in advance, discussions over days, referring it to a Parliamentary Committee for advanced research and inviting public comments. This Bill started from a Cabinet note and amended the Constitution all within a week. Needless to say, there was not a lot of debate on the merits and demerits of the bill, which is sad, because that is where we would have really seen what the ramifications of this could be. Unfortunately, no political party seemed to be willing to take a stand against any reservations in our country.

 

Another concern is with respect to the economic criteria itself. Data suggests that around 95% of Indians will be eligible for reservation based on these criteria. A quota that benefits everyone does not really benefit anyone, does it?

 

The last point is a lot more subjective. Remember that the initial articles in the Constitution did not provide for an economic criterion for applying the benefits of affirmative action. How far is this valid today? We have all heard about the anecdotal problems with the system of reservation - the same sections of society getting benefits from reservation, certain well-off sections enjoying benefits while the poor get left out, the ‘merit’ argument - but it is worthwhile to dwell on the original reasoning behind reservation for a moment.

 

Reservation in India: What Does the Constitution Say?

 

The reason economic criteria was explicitly left out not because people were not poor, but because the society in 1951 actively pushed socially backward communities into poverty. Economic backwardness was a consequence of social backwardness, and social networks of caste and class provided for a rigid structure where certain classes could not lay claim to economic opportunities despite how hard they tried. Certain sections of society, certainly the ‘untouchables’ faced active discrimination not because they were poor - they were poor because they were actively discriminated against. The cause was social, but the effect was economic, which is why the initial language clearly states “socially and educationally backward classes”. It is important to recognize that affirmative action is primarily intended to remove social backwardness criteria, and empowering traditionally backward portions of the population to have a voice in every sphere of importance in the country.

 

Now to answer the question - how far does the social backwardness criteria hold true in India today? Has reservation lifted people out of their socially and educationally backward state?

 

The % of population split into the various sections is - “A survey by the National Sample Survey Organisation (NSSO) put the OBC population in the country at 41%, the SC population at 20%, ST population at 9% and the rest at 31%.”

 

In an absolutely equal country where benefits accrued to all equally, the proportion of population in various important posts in the Central government (where reservations are applicable) would also have a similar pattern.

 

 

As per data received from 78 ministries and departments, including their attached and subordinate offices, the representation of SCs, STs and OBCs in the posts and services of the Central government as on January 1, 2016, is 17.49%, 8.47% and 21.57% respectively.

 

On this basis, it does seem that reservation has worked for SCs and STs (as a consequence of it running for ~70 years), but not for OBCs, where their representation is still smaller than their % in the population.

 

An interesting aspect of this data is that as you go higher in the Central government posts, the representation reduces significantly.

 

According to a written reply by the Department of Personnel and Training (DoPT) in the Lok Sabha, there are 431 officials at the Secretary, Special Secretary, Additional Secretary and Joint Secretary level in various Central Ministries and Departments. Of this, only 28 belong to the SC category and 12 to the ST category.” Make of this what you will.

 

What Next?

 

Affirmative action is an accepted practice across the world to provide representation to under-represented classes. There is always going to be a debate raging on whether keeping caste as a criterion for reservation fuels casteism and political opportunism, but the reality of our country is that large sections are still under-represented and face the kind of daily atrocities in society that you and I don’t. For them, it is imperative that affirmative action policies tread the thin line between social and economic criteria, understanding the realities of our situation. In the long run, economic criteria are more objective, but we cannot discard the legacy of hundreds of years of exploitation which has driven a large percentage of our population into the lowest rungs of society.

 

For now, we await the Supreme Court’s view on the latest amendment and see where it goes.

 

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