Consentia on Multidisciplinary Research

RESERVATION POLICY IN INDIA : CONSTITUTIONAL PROVISIONS AND A NEED FOR CHANGE.

“……After all the whole purpose of the Constitution as proclaimed in the Directive principles is to move towards what I may say a casteless and classless society……”[1]

– Pandit Jawahar Lal Nehru

INTRODUCTION

The Preamble of our constitution prescribes for equality of status and opportunity to all citizens of India. The framers of our constitution kept this principle in mind while making provisions for the depressed classes of the society who had been heritor discriminated by the upper classes. Provisions made were in the form of  Affirmative action policies concentrated largely towards the Scheduled Castes, Scheduled Tribes and the Other backward Classes[2], due to the long past of discrimination that they have seen because of the rigidity of the Indian society. Affirmative action, by and large means any measure, beyond simple termination of a discriminatory practice, that permits the consideration of race, national origin, sex, or disability, along with other criteria, and which is adopted to provide opportunities to a class of qualified individuals who have either historically or actually been denied those opportunities and/or to prevent the recurrence of discrimination in the future.[3] In India, however, the term used for such measures is positive discrimination or compensatory discrimination.[4]Affirmative action policies have a long history in India; are constitutionally guaranteed, and take the form of quotas in government jobs, educational institutions, and electoral seats at each level of government.[5]

It must be appreciated that time never stays static and so doesn’t the social conditions of a nation. Though given on the basis of historical discrimination to the backward classes, today the major debate is that whether after 64 years of the formation of constitution, should reservation be on the basis of caste or whether it is time to take up other considerations such as the class i.e. income level of a person while granting such benefits. One major consideration for this is that the Preamble to the constitution provides for India to be a Secular nation. Reservations on the basis of caste puts to question policies made by our government, it questions the secular nature of these policies. Today the rigidity of the caste structure is not what had been present at the time of framing of the constitution. Even the framers of the constitution acknowledged this fact and made provisions only for a period of ten years, which has, since then been extended due to various political reasons.

The present article deals with the Affirmative action policies for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes (OBCs). It looks into the history of such discrimination and the policies adopted by the Colonial Rulers; it then touches upon the Constitutional developments and guarantees which are available to these particular groups. The next section deals with the caste and class debate discussing whether positive discrimination policies must be give to members of castes who had been heritor discriminated  or on the basis of income of the classes of people. The next section concludes the article giving some suggestions.

HISTORY OF RESERVATIONS IN INDIA

Indian societal structure has been marked by divisions into castes and sub-castes (Jatis). The first three castes i.e. Brahmans, Kshatriyas and Vaishyas were treated to be higher than the Shudras who were treated as untouchables. Thus, the first three castes were regarded as socially and educationally advanced by virtue of their origin and higher status, thus giving them easier access to education and other benefits. The Shudras being treated as untouchables were kept apart from the mainstream society and were denied access to most public places, education and were thus socially and educationally backwards and came to be known as the Backward Classes or the depressed classes. It is on the basis of this historical discrimination that reservation policies exist to enable these backward classes to be adequately represented and given access to benefits they were earlier by virtue of their castes deprived off.

These reservation policies are not a feature of only Independent India but prevailed from the British era. In India reservations were introduced in the last decade of the 19th century, at a time when the subcontinent could be broadly divided into two forms of governance – British India and 600 Princely States.[6] Some of the Princely states were progressive and wanted to maintain unity in their states and thus gave reservation benefits to the depressed classes so as to prevent them from revolting. Non- Brahmin movements were seen everywhere in Tamil Nadu and Madras Presidency was the first in the country to frame the Grant-in-Aid Code in 1855 to grant financial aid to educational institutions to provide special facilities to students of depressed classes.[7] In 1927 it also issue ‘Communal Government Order’ to provide reservation by quota based on caste. The Princely state of Mysore accepted the recommendations made by the First Backward Classes Commission headed by Sir L.C.Miller extending facilities in education and recruitment in state services in 1918.[8] These backward classes were defined to include all castes and communities other than Brahmins, including Muslims, who were not adequately represented in public services.[9]

The first initiative at all India level for the welfare of backward classes was taken by the Montagu-Chelmsford Reforms in 1919. The Montagu-Chelmsford Report recognized fully that the existence of the social difference and divisions formed a feature of Indian society which is out of harmony with the ideas on which elsewhere in the world representative institutions rest.[10]It thus gave separate representation to depressed classes in a number of public bodies.

This representation was also demanded at the time of formation of the Constitution of India so as to protect the lower castes from being discriminated by and to protect these classes from being snatched away their cultural autonomy by the higher castes. Most representatives of the Scheduled Castes in the Constituent Assembly  claimed minority status and emphasized that Untouchables were culturally a part of the Hindu community, and were not a kind of religious but  were a `political minority’.[11] They did not demand minority status on the basis of numerical disadvantage, but rather on their social and educational backwardness.[12] Tribals on similar demands on being discriminated and on grounds of being situated in remote areas have been socially and educationally backward. These demands by leaders of both communities lead to the Constituent assembly agreeing to give certain protection and privileges to Scheduled Castes and Scheduled tribes for a period of 10 years.

CONSTITUTIONAL BASIS FOR RESERVATION IN INDIA

The framers of the Indian Constitution took care to safeguard interests of the minorities, to give them a sense of security, to ensure that there is no discrimination against them and to help them integrate into the main stream of national life. In order to achieve these objectives a number of provisions were incorporated into the Constitution for safeguarding specifically the social, economic and educational interests of minorities. Provisions had also been made for adequate representation of these groups in various Legislative Assemblies.

The policy of the Constitution is to do away with caste and strive for a casteless society. Thus there is neither any safeguard to any one caste except Scheduled Castes, nor is there any discrimination against anyone on the basis of caste.[13]

Article 15(1) of the Constitution of India prohibits discrimination on the grounds of religion or caste identities so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it.[14] However, this Article after the incorporation of the Constitution came in way for making provisions in the interest of backward sections of the society. In 1951, Supreme Court in a case[15] struck down a Government order as it was based on caste, religion and race for the purpose of admission to educational institutions. In order to override such difficulties from coming up in future Article 15(4) was added to the Constitution of India by the First Constitutional Amendment (1951) which said that the state is not prevented from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or Scheduled Tribes. The object of the clause added in 1951 was to bring Articles 15 and 29 in line with Articles 16(4), 46 and 340 and to make it constitutional for the state to reserve seats for the backward classes of citizens.[16]

For the purpose of Article 15 the class must be “socially and educationally backward”. In the absence of any criterion specifically laid down by the constitution, the matter is left upon State authorities to specify backward classes. The courts have over a period of time laid down certain propositions with regards to the identification of backward classes. It have been laid down several times that the backwardness envisaged by Article 15(4) has to be social and educational and not either social or educational backwardness.[17] Also it has been held that poverty alone cannot be a test of backwardness in India because large sections of the society are poor, as such would fall under the backward category and thus the whole object of reservation would be frustrated.[18] Caste can be a relevant factor to define backwardness, but it cannot be taken as a sole criterion, if classification was to be based solely on caste, then the caste system would be perpetuated.[19] Also, it would be against Article 15(1) and against the secular nature of our constitution.

Article 16 of the Constitution provides for equality of opportunity in matters of public employment and prohibits any discrimination on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them. The state may however, under Article 16(4) reserve any post or appointment in favour of any backward class of citizens who, in the opinion of the state, are not adequately represented in the services under the State.

Article 16(4) is “an enabling provision” conferring a discretionary power on the state for making any provision or reservation of appointments or posts in favour of any backward classes of citizens which, in the opinion of State are not adequately represented.[20] It neither imposes any constitutional duty nor confers any Fundamental Right on any one for claiming reservation.[21]

Like in the case of Article 15, for the test for backwardness under a citizen must be a member of a “socially and educationally backward class”[22], as a test solely based on caste would be violative of Article 16(2)[23]. Article 16(2) expressly forbids discrimination on basis of caste. Scheduled Castes and Scheduled Tribes are not castes within the ordinary meaning of Caste. These are backward human groups. There is a great divide between these persons and the rest of the community. As Scheduled Caste and Scheduled Tribes suffer from socio-economic backward status, the fundamental right of equality of opportunity is justifies categorization of Scheduled Castes and Scheduled Tribes separately for the purpose of adequate representation in State services.[24] It has been at various occasions pronounced by the Courts that equality of opportunity mean equality between members of same class of employees and not equality between members of separate and independent classes.

According to Chandrachud J., two tests must be applied together for the purpose of identifying backward classes; first, that they should be comparable to Scheduled Castes and Scheduled Tribes in matter of their backwardness; second, that they should satisfy the ‘means test’, i.e. the test of economic backwardness laid down by the state government.[25]However, by and large the test for backwardness of a class has been left on the State governments. It has also been held in the case of Indra Sawhney v. Union of India[26] that reservation must be given to only those people who are excluded from the creamy layer[27] of backward classes.

Article 16(4) must be interpreted in the background of Article 335 which provides that while taking into consideration the claims of Scheduled Castes and Scheduled Tribes maintenance of efficiency must not must not be overlooked. The Supreme Court has therefore held that it would be unwise that while making a reservation under Article 16(4) care would not be taken to provide for unreasonable, excessive or extravagant reservation and that it is of paramount importance that efficiency of administration be maintained.[28] Although not expressly mentioned, the same principle of efficiency of administration is to apply to reservation of posts for the Other Backward Classes.[29] This duty to maintain efficiency has to be exercised keeping with the Directive Principles laid down in Article 46 to promote with special care the education and economic interests of Scheduled Castes and Scheduled Tribes, and to protect them from social and all form of exploitations.[30]

Article 16(4A) provides for reservation in promotions with consequential seniority, to any class or classes of post in services under the State in favour of Scheduled Castes and Scheduled Tribes, which in the opinion of the state are not adequately represented in the services under the State. This was however not available until the 77th Constitutional Amendment which had been brought into effect to permit reservations in promotion for Scheduled Castes and Scheduled Tribes. This amendment had been brought to overrule the judgment given in Indra Sawheny[31] which opined that Article 16(4) was confined only to initial appointments only and it did not permit or warrant reservations in matter of promotion as it gave rise to several untoward and inequitous results. However, it must be kept in mind that the 77th Amendment did not completely overrule Indra Sawhney’s judgment as it did not allow for reservation for promotions to the Other Backward Classes.

 

WHETHER CLASS OR CASTE?

Scheduled Castes have been given reservation on the grounds that they have been historically treated as inferior to other castes. Though they are not strictly speaking a racial, linguistic or religious minority, they have been a part of the Hindu society but have been discriminated as being outside the Varna system. Thus, reservation for the Scheduled Castes has been justified from two perspectives.[32] On the one hand, it was a sacrifice that the majority was expected to make given the errors of its past practices, and on the other hand, it was to be a way of ending the exclusion and segregation that was imposed upon the Scheduled Castes by the rest of the society.

The Scheduled Tribes were also given protection but they were not given protection on their social or educational or economic backwardness. There are basically three main characteristics of these people i.e. primitive way of living, nomadic habits, love for drink and dance and habitation in remote and inaccessible areas.[33] Even when communities were literate they continued to stay segregated due to their distinct cultural pattern. Thus, the reservations for Scheduled Tribes also had a dual aspect.[34] On the one hand, it took cognizance of the disadvantages that stemmed from the tribal way of life, particularly its incompatibility with the market system; on the other hand, it sought to include into the political process populations that had previously been excluded on account of their special status and protective segregation.

Thus, the protection given to these groups was to include them into the social and political lives of normal citizens, to enable them to break their shell and join the mainstream. Thus, policies for their reservations have been criticized relatively to a lesser extent. Further, the Constitution of India prescribes that it is only the President, i.e. the Central Executive who can list communities as Scheduled Castes[35] and the President in consultation with the Governor of the State may classify any tribal groups as Scheduled Tribes.[36]It is only the Parliament who has the power to amend such a list which has been notified by the President.

However, reservations for the Other Backward Classes have been under scrutiny since the First Commission on Backward Classes[37]  submitted its report in 1955. The Commission took caste as the criteria for determining socially and educationally backward classes. The Chairman of the committee, Kaka Kalelkar while forwarding the recommendations of the Commission expressed his dissent in adopting the report of the Commission, arguing that identifying backwardness along caste lines was inimical to the interest of secular democracy.[38] He also argued that this criterion would have an unhealthy effect on the Muslims and Christians as there are sections in these communities as well which are backward but are not recognized as such by the Commission as it has taken caste as a basic criteria for backwardness, eliminating all communities except Hindus to be backward and thus entitled to the benefits of the Constitutional provisions. The report was not adopted by the government as it had considered it to be vague on the criterion used to identify backward classes.

In 1978, the Second Backward Classes Commission, popularly known as the Mandal Commission[39] was appointed to determine the socially and educationally backward classes was set up. The Commission submitted its report in 1980. However, the recommendations of the report were adopted only in the year 1990, which lead to widespread protests. The reason for the protests was the commission took caste as a major dominant criterion to classify communities as backward.

From the time of adoption of the Constitution of India the policy of reservation has been under scrutiny due to the adoption of caste as a criterion for determining backward classes. Not only have the Commissions for backward classes chosen caste as a dominant criterion for the determination of backwardness but judiciary in various judgments have also to some extent favoured caste as being a criterion for determination of backwardness.[40]

The major argument is that it should be the class i.e. the economic condition of a section which should be taken into consideration for determining backwardness and not caste. A caste based reservation policy can be unjust as it suffers from the shortcomings of both over inclusion, i.e., extending quotas to those who do not deserve them on economic grounds, as well as under-inclusion, that is, denying quotas to those who deserve it on economic grounds. Assertions that reservations should be on basis of caste and communal groupings can be obscured by the fact that the importance of the ritual disabilities of castes as a criteria of backwardness has declined. Instead secular profile of a caste, involving criteria such as literacy, poverty, representation in education and admission had gained ascendancy in description of backwardness.[41]

In contrast to hereditary caste, class has generally been “defined primarily by property, wealth, occupation, income, and education.”[42] Reservations on basis of caste as a dominant criterion fail to address to the economic status of people. Poor in all castes must be able to get benefits of reservations; however, it is only the elite of the group which enjoys these benefits, thus creating a further sub divide in the caste itself.

 Taking caste as a criterion for determination of backwardness would mean an assumption that only the lower castes have poverty prevailing and upper castes and non-Hindus such have no such problem of poverty, which is absolutely false. This can be proved by the Sachar Committee Reports which shows that the condition of Muslim population in India is worse than that of Scheduled Castes and Scheduled Tribes.[43]

 Caste based reservation is against democratic principles of individual as a unit of reference, as it gives benefits to groups as a whole. It would encourage caste consciousness and caste loyalties and would further promote forces of dissension and communalism. The use of caste groups to identify the beneficiaries of compensatory discrimination lead to perpetuation of the caste system, accentuating caste consciousness, injecting caste into politics and generally impeding the development of a secular society in which communal affiliation is ignored in public life.[44] The Constitution of India declares India to be a Secular, Democratic, Republic; however, reservation on caste lines seriously undermines the secular nature of the policies adopted by the government. Marc Galanter has rightly said that if secularism is defined in terms of elimination of India’s compartmental group structure in favour of a compact and unitary society, then compensatory discrimination policy has impeded secularism.[45]

Caste based discrimination can also be criticized on the ground that the Constitution speaks of Backward Classes and not Backward Castes. Thus adoption of a criterion with caste as a dominant factor is itself against the Constitution. This has been emphasized by the Supreme Court as well when it said that ‘backward class’ is not synonymous with ‘backward caste’ or ‘backward community’.[46]

Economic backwardness and not caste must be taken as a dominant criterion for the determination of the backwardness of any citizen. The persons entitled for reservation must be taken into consideration only on basis of the economic condition and not on caste basis, this would ensure that the truly deserving get the benefit of such policies. After 64 years of the formation of our Constitution, caste system is not based on discrimination. People have now become secular in thoughts and it is time to implement policies not on caste basis but on considerations other that castes. The application of means test[47] would ensure that the most deserving and weaker sections of the population are benefitted from the positive discrimination programs. At present, with the use of caste as a basis of identity of backward classes, benefits are siphoned off by the relatively more advanced sections of the group. The use of economic criterion would minimize social hostilities by including the poorer sections of all communities, even those who occupy a high position in the caste hierarchy. It would also weaken caste identities by contrast to a situation when caste is used to identify beneficiaries which lead to surfacing of collective caste interests, thereby strengthening caste loyalties and groupings.[48]

The Supreme Court has also sensed the danger of using caste as a dominant criterion for determination of socially and educationally backward classes. In a landmark judgment of Balaji v. State of Mysore[49] the Supreme Court said that economic backwardness would provide much more reliable yardstick for determining social backwardness because more often educational backwardness is the outcome of social backwardness. However, the Supreme Court in its another judgment held that poverty cannot be taken solely as a criterion for determination of backwardness as a large number of people in India are backward and a classification on basis of poverty would frustrate the whole object of reservation.[50] Adoption of an economic criterion would translate into reality two constitutional goals: one, to strike at the perpetuation of caste stratification of the Indian society and to take a firm step towards establishing casteless society; and, two, to progressively eliminate poverty.[51]

After the Indra Sahweny judgment, benefits of reservation for the OBC’s have been restricted to only the persons left behind after exclusion of the ‘creamy layer’. The term ‘creamy layer’ was first introduced by the Sattanathan Commission in 1971 and is used to describe those persons of the Backward classes who are excluded from the ambit of reservations because of being relatively wealthier and better educated.  It is the government who decided the creamy layer income, thus has been seen over the years that governments in order to get political support and due to vote bank politics set such levels so as to please maximum number of persons and get majority support. Such levels are also revised from time to time and have been increased to levels where it is only the elite sections of the backward classes who avail benefits of reservation policies which were incorporated into the Constitution so as to benefit the socially and educationally backward.

Another major problem with the creamy layer is that getting such certificates of being under the creamy layer is not a tough task given the working of our system where corruption is rampant and officers do not take the pain of looking into the details of the documents nor do verify them to ensure that those which are supplied are genuine and not counterfeited. Though the Other backward Classes have been placed under a so called restriction to prevent the ‘creamy layer’ among them to get benefits of reservation there have been no such provisions in case of Scheduled Castes and Scheduled Tribes. It has been a general trend that benefits reserved for tribal people of remote areas have been availed by tribals, who have migrated and have secured a good position in the society both economically and educationally. Also, same is the case in Scheduled Castes; the richer and sounder sections have been the ones benefitting reservations meant for the lower and deprived sections of the society.

SUGGESTIONS AND CONCLUSION

The basic problem in India when it comes to India is that reservation is seen as a basis of social transformation. They have started to be seen as a substitute for the failure of development programme.[52]As a mode of social transformation reservations in education and jobs have helped socially backward classes to some extend to get access to social resources, it has however, not helped in moving towards the idea of non discrimination. Reservations have now become a political tool which helps political parties get vote banks and thus has led to a large number of castes being included into the class of Other Backward Classes. The primary objective is now to fill in the reserved seats and given concessions in minimum qualifications required rather than developing skills, abilities and better life conditions, there continues to be a divide there continues to be a divide between the two categories of recruits; those who come from general category and those from reserved quotas. In absence of comprehensive affirmative action programmes, so as to improve the life situation, environment and basic amenities, positive discrimination measures are never adequately effective.[53] Thus, there is a need to supplement these policies with policies to improve the condition of these people. Also, there is a need to improve the way in which reservation policies are implemented. A few suggestions apart from the one suggested above i.e. making reservations on economic and not caste basis that would help in better implementation of reservation policies and would also help reduce divide between the two categories of citizens by uplifting the backward classes to the level of advanced classes are:

STRESS ON PRIMARY AND SECONDARY EDUCATION

Instead of making reservation policies for higher education, the government should make policies for ensuring compulsory primary and secondary education to all children. It must also ensure that the quality of education is up to certain standards. Some tangible school-related factors which have a positive impact on quality[54]:

  • Class size
  • Separate learning spaces for each class
  • Child-centered teaching-learning practices
  • Use of classroom relevant teaching-learning materials
  • Continuous assessment of students understanding
  • Teacher knowledge
  • Regular evaluation of teaching-learning practices
  • Continuous professional development for the teacher
  • Time devoted to teaching by teachers
  • School meals
  • Health programmes, such as de-worming
  • Availability of clean drinking water
  • Separate toilets for girls

Though, steps have been taken by policies like mid day meal and Right to Education but these have not been implemented in an effective way. There are government schools where education is provided free of cost yet parents prefer spending thousands of rupees to send children to private schools, the reason being the standard of education and condition of government schools. Poor infrastructure and under trained teachers make parents distrust government schools. Government should ensure proper schools with adequate teaching faculty so as to improve the quality of education. Education standards must be uniform and committees should be made to look into the functioning of these schools. Parents in remoter and rural areas must be made aware of the need to provide their children with proper education and the importance of schooling at early ages. The biggest problem in India is that rural population is mostly uneducated and thus do not realize the importance of education. It is this population that later as parents does not pay adequate attention to their child’s education. It is thus, not only necessary to provide facilities like better infrastructure, teaching staff and access to these facilities to children but more important  is to make the largely uneducated parents aware of the need to get their children educated. It is only then that the policies made for compulsory education be effectively implemented. Measures should also be taken to build up confidence among backward classes through extra training. On given proper education the need for reservation for higher education reduces because the quality of education given increases and students can then be judged on merits.

THE PROBLEM OF CREAMY LAYER  AND CASTE CERTIFICATES

After the Indra Swaheny judgment, reservation to the OBCs is only available to the non-creamy layer category. However, as has been seen above there is serious malfunctioning in the issuance creamy layer certificates. Documents like income certificates which are required are not examined properly by the officers and often such documents are forged. Justice Reddy in a case observed that it is not difficult for someone to obtain a certificate from an official or a legislature to show that his income is a certain figure so as to avail the benefits of reservation. The rural elite do not find it difficult at all; rather it is the truly lower classes who find it difficult to obtain such certificates.[55] It has been seen over the years that the machinery for determination of income and occupation has been faulty and have given ample of scope for manipulation. Taking such factors into consideration it is evident that the richer among the backward classes through various means are the ones who avail the benefits of the reservation policies leaving the truly poor empty handed. Also, most of the population truly eligible to get such non-creamy layer certificates do not have adequate documents like income certificate and Ration Cards or Voter ID’s to get non creamy layer certificates made thus are deprived off their rights.  Guidelines must be laid down so as to ensure only those who are indeed needy get these certificates. Investigating officers must be appointed to make proper inquiry regarding the occupation and assets of the person who applies for such certificates .Procedures for applying for and getting Voter IDs and Ration Cards as well as income certificates must be made easy for illiterates to understand. Officers must be appointed to assist rural to avail such benefits.

Another major problem similar to the one mentioned above is the issuance of fraudulent caste certificates. Reservation made on basis of castes has led to people using various means to secure caste certificates to prove they belong to Scheduled Castes when they in reality belong to higher castes. In the state of Karnataka itself there are around 40,000 fraudulent caste certificates which have been issued. These have been done by manipulating certain synonymous words. The state has planned to take stringent steps and create a new Act to penalize such persons who hold fraudulent certificates with imprisonment and fine.[56] Such steps must be taken at national level and state authorities must ensure proper investigation before issuing such certificates. Also, a Central legislation must be passed to penalize such defaults.

COMMITTEE FOR DETERMINATION OF BACKWARD CLASSES

Till today there is no uniform method for determining backward classes in the country. This leads to serious problems as state governments to woo voters include more and more castes into the category of backward classes. It is necessary to have a nation-wide uniform method of ascertaining backward classes. This would ensure that there is no discrepancy in the rules made for backward classes and also that there is no politicization of provisions of the Constitution to get votes by the then government at power. Such steps would also ensure secularism in the country and enable the truly backwards to avail benefits made for them.

It is also essential that constant revisions are made to the list of backward classes. No class of citizens can be perpetually treated as socially and economically backward. Backwardness cannot continue indefinitely.[57] Thus it is essential for the State authorities to reassess those included in backward categories at regular intervals to ensure that reservation policies are not being misused and that administrative standards and efficiency remain unaffected.

PROMOTIONS AND CARRY FORWARD RULE

Effectively, the backward classes get benefits at three levels through reservations. Firstly, at the time of admission to the college, secondly, at the time of obtaining jobs and lastly, when they get promotions. Such three folded benefits not only cause resentment in the candidates of other categories but also results in laxity and complacency at the part of candidates of the reserved category. Each employee should be made to earn his promotion through merit and efficiency. Reservations being brought in at every stage of the official hierarchy lead to some people rising sharply to the top just because of their birth in a backward community which leads to frustration among others. Efficiency and discipline also suffer.

The carry forward rule in case of seats reserved for backward classes is also criticized if unfilled vacancies are kept vacant for two or three years before being deserved, it at certain stages lead to deserving candidates from general category being denied of posts they deserve. Those seats not filled up by reserved candidates must be left open to be filled up by general category candidates. This would not only ensure that meritorious and deserving candidates get posts but also would keep the efficiency and competitive spirit alive.

Inclusion of creamy layer criterion in case of scheduled castes and scheduled tribes

The scheme of reservations being restricted to the non-creamy layer category is applicable to the Other Backward Classes only. As such among the Scheduled Castes and Scheduled Tribes have no income ceiling limits to restrict the advanced and well off classes from availing reservation quotas, resulting in economically and educationally secure candidates robbing off benefits meant for the truly backwards among such classes. This defeat the purpose of equality sought and also makes scope of Articles 341 and 342 of the Constitution of India highly arbitrary. Giving reservations to children of politicians, academicians, doctors, engineers who belong to the Scheduled Castes and Scheduled tribes who have achieved success and hold a good social and economic standing would result in injustice to children of non-reserved categories. Non exclusion of creamy layer category among Schedules Castes and Scheduled Tribes also leads to a kind of twofold advantage. Parents who have availed seats through reservation in various institutions and jobs become socially and economically advanced leading to economic advancement, however they again avail advantage of reservations for their children who have not been deprived of education.  Thus, implementation of reservation without creamy layer criterion excludes 99% of the targeted population. Reservations must also be limited to one generation. Subsequent generations do avail benefits from previous generations and thus should be made to compete in general category.

SELF EMPLOYMENT OPPORTUNITIES

Though reservations have been made in jobs yet there are a large number of citizens of backward classes who are uneducated and cannot avail benefits of such reservations. Due to lack of resources it is difficult for them to engage in other businesses and thus, end up working as daily wage earners or picking up petty jobs not providing enough funds to be sufficient to provide quality education to their children. This results in a vicious circle where poverty begets poverty and the Constitutional provisions in no way help in the upliftment of backward classes.

Thus, the state must provide for self employment opportunities to the backward classes to help them lead a decent life. Schemes such as MGNREGA[58] have been implemented to provide guaranteed labor of 100 days to rural population but it is not implemented effectively. Also, such schemes are not sufficient in itself and should be supplemented with additional aid so as to enable such people to become self reliant and financially secure. Funds in proportion to the Scheduled Castes and Scheduled Tribes population of the national, state district block and village should be earmarked out of the total representative plan outlay at these levels. And it should have separate budget head and expenditure from such funds should be periodically reported at short intervals to concerned authority. Participation of Scheduled Castes and Scheduled Tribes in trade, commerce and industry is negligible due to lack of finance, advances by the state and national financial institutions and banks.[59] The collateral and security requirement for loans must be relaxed. However, it must be ensured that such benefits are taken only by those who are economically backward among Scheduled Castes and scheduled Tribes and not those who already are financially and educationally secure.

It must be borne in mind that the phrase socially and educationally backward class was relevant in absolute terms in 1950’s but not today. These classes who have enjoyed benefits of reservation for almost 64 years are educationally forward, some more forward that some of the advanced classes in economic terms. Therefore, the phrase socially and educationally backward classes in Article 15 and 16 of the constitution may be substituted with economically and educationally backward classes embracing all castes and communities including religious minorities in order to broaden the concept of social justice.[60] It is not essential that social and educational backwardness coexists. It is necessary that all programmes of positive discrimination be used sparingly to ensure a balance between two sections of the society. Using caste as a dominant criterion, as seen over the years causes resentment in the hearts of those who have been kept outside the purview of reservation on them belonging to a particular higher caste. It also causes injustice to those economically backward among the upper classes that though deserve to get some help are not given reservations for the reason of belonging to an upper caste. So reservations must be based on the economic condition of individuals rather than on their collective caste identity. When positive discriminatory policies are used to provide equality of opportunity and status to the disadvantaged groups, it is necessary to have a comprehensive mechanism so that such policies do meet the intended purpose. Policies such as reservation of jobs and seats that target individuals within a group are therefore insufficient, and they need to be supplemented by other forms of affirmative action that improves the life conditions of group as a whole. In the absence of the latter reservations would not only be inadequate for the countering the structures that shape the backwardness of a group, but they would also foster the impression of being contra-individual rights and practices of democracy.[61]

 [1] Lok Sabha Debates, Vol. XII-XIII (Part II), p. 9830-31.

[2] Other backward classes have been taken into the purview of the affirmative action policies in 2006 after the Mandal Committee’s report was accepted by the UPA government which was at the center at that time.

[3] U.S. Commission on Civil Rights, Office of the General Counsel, Briefing Paper for the U.S. Commission on Civil Rights:Legislative, Executive and Judicial Development  of Affirmative Action, Washington, D.C., Mar. 1995.

[4] Marc Galanter, Pursuing equality: An Assessment of India’s Policy of Compensatory Discrimination for Disadvantaged Groups, in Social and Economic Development in India,  (Dilip Basu & Richard Sisson eds., 1986).129

[5] Ashwini Deshpande, Affirmative Action in India and the United State, (World Bank, Washington DC 2005).

[6] Bhagwan Das, Moments in a History of Reservations, Economic and Political Weekly, Oct 28, 2000, at 31.

[7] M. L. Mathur, Encyclopaedia of Backward Castes, Vol. 1 (Kalpaz Publications, Delhi 2004).

[8] Ibid.

[9] Rochana Bajpai, ‘Redefining Equality: Social Justice in the Mandal Debate, 1990’, in, Political Ideas in Modern India: Thematic Exploration, (V.R. Mehta and T. Pantham eds. Sage Publications, New Delhi 2006), p. 326-339.

[10]Sukhadeo Thorat and Narendra Kumar, Statement for the Protection of Depressed Classes as a Minority in Bombay Presidency 29May 1928, B.R. Ambedkar: Prespectives on social exclusion and Inclusive policies ( Oxford University Press, 2008) p 89.

[11] Constituent Assembly Debates, I p.139.

[12] Constituent Assembly Debates, V p. 202.

[13] M.P. Jain, Indian Constitutional Law,( Lexis Nexis Butterworths Wadhwa Nagpur India, 2009), p. 1398.

[14] Valsamma Paul v. Cochin University AIR 1996 SC 1011, p. 1019.

[15] State of Madras v. Champakam Dorairanjan, AIR 1951 SC 226.

[16] Indra Sawhney v. Union of India AIR 1993 SC 477.

[17] M.R.  Balaji v. State of Mysore AIR 1963 SC 649.

[18] Janki Prasad Parimoo v. State of Jammu and Kashmir AIR 1973 SC 930.

[19] Jayasree v. State of Kerala AIR 1976 SC 2381.

[20] Mohan Kumar Singhania v. Union of India AIR 1992 SC 1.

[21] Ajit Singh v. State of Punjab (2000) 1 SCC 430.

[22] Janki Prasad Parimoo v. State of Jammu and Kashmir, Supra 18.

[23] Trilok Nath v. State of Jammu and Kashmir AIR 1969 SC 1.

[24] M.P. Jain, Indian Constitutional Law, (Lexis Nexis Butterworths Wadhwa Nagpur India, 2009), p. 960.

[25] K.C. Vasanth Kumar v. State of Karnataka AIR 1985 SC 1495, p. 1499.

[26] AIR 1993 SC 477.

[27] The term ‘creamy layer’ refers to the elite sections in backward classes.

[28] General Manager, Southern Rly v. Rangachari AIR 1962 SC 36.

[29] Indra Sawheny v.Union of India AIR 1993 SC 477.

[30] Compytoller and Auditor General of India, Gian Prakash v Jagannathan, K.S. AIR 1987 SC 537.

[31] Gurpreet Mahajan, Affirmative Action as Inclusion, Identities and Rights: Aspects of Liberal Democracy in India (Oxford University Press, Delhi 1998)p. 115-148.

[32] Ibid at 117.

[33] First Report of the Commissioner for Scheduled Castes Scheduled Tribes, 3,11(1952).

[34] Ibid.

[35] The Constitution of India, Article 341.

[36] The Constitution of India, Article 342.

[37] Popularly known as the ‘Kaka Kalelkar Committee’ which was set up to identify the socially and educationally backward classes backward classes.

[38] M. L. Mathur, Encyclopaedia of Backward Castes, Vol. 2 (Kalpaz Publications, Delhi 2004).

[39] The reason being that it was headed by B.P. Mandal.

[40] Jayasree v. State of Kerela, Supra 19.

[41] Rochana Bajpai, ‘Redefining Equality: Social Justice in the Mandal Debate, 1990’, in, Political Ideas in Modern India: Thematic Exploration, (V.R. Mehta and T. Pantham eds. Sage Publications, New Delhi 2006), p. 326-339

[42] Béteille, “Classes and Communities”, in Caste, Class, and Power: Changing Patterns of Stratification in a Tanjore Village(Berkeley: University of California Press, 1965), p. 945.

[43] For more, see Sachar Committee Report at http://www.minorityaffairs.gov.in/sites/upload_files/moma/files/pdfs/sachar_comm.pdf

[44] Marc Galanter, Pursuing equality: An Assessment of India’s Policy of Compensatory Discrimination for Disadvantaged Groups, in Social and Economic Development in India,  (Dilip Basu & Richard Sisson eds., 1986) p.129.

[45] Ibid.

[46] Triloki Nath v. State of Jammu and Kashmir AIR 1969 SC 1.

[47] Means test is a useful mathematical test for determining eligibility criterion for reservations of OBC’s for excluding the creamy layer. It is a mathematical averaging formula to arrive at a cut off limit to decide eligibility criterion while using economic status as a criteria

[48] Gurpreet Mahajan, Affirmative Action as Inclusion, Identities and Rights: Aspects of Liberal Democracy in India (Oxford University Press, Delhi 1998)p. 115-148.

[49] AIR 1963 SC 649.

[50] Janki Prasad Parimoo v State of Jammu & Kashmir, Supra 18.

[51] K.C. Vasanth Kumar v. State of Karnataka, Supra 25 at 1507.

[52] Gurpreet Mahajan, Affirmative Action as Inclusion, Identities and Rights: Aspects of Liberal Democracy in India (Oxford University Press, Delhi 1998) p. 115-148.

[53] Ibid.

[54] UNICEF, Quality Education Package for Primary School ( April 9, 2014, 12:50 P.M)  at .http://www.unicef.org/india/education_3614.htm .

[55] K.C. Vasanth Kumar v. State of Karnataka, Supra 25.

[56] Deccan Herald State has 40,000 fake caste certificates  ( April 13, 2014, 1:05 PM) at http://www.deccanherald.com/content/190534/state-has-40000-fake-caste.html

[57] Jagdish Negi v. State of  Uttar Pradesh AIR 1997 SC 3505.

[58] Mahatma Gandhi rural  national employment guarantee act, 2005.

[59] Sunita yadav, Action Points for Development of Scheduled Castes and Scheduled Tribes, Reservation and anti-reservation, (Signature Books International, 2011) p 213.

[60] G Ramachandra reddy, Reservation in Higher Educational Institutions and Services- Letter Dt. 31-5-2006 to Prime Minister of India, threats to Indian republic,(A P H Publishing Corporation, 2007) p. 197.

[61] Gurpreet Mahajan, Affirmative Action as Inclusion, Identities and Rights: Aspects of Liberal Democracy in India (Oxford University Press, Delhi 1998)p. 115-148.

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