Reservation in India 2020

1 Sep 2020  Read 1913 Views

Britishers were well aware about the lack of unity amongst Indians. They took no time in taking advantage of that which is the reason we were under their rule for 400 years. Quite a long time and we still don’t know that either we are above their method of ruling.

With Morley - Minto reforms in 1909, there was introduction of communal electorates meaning voters from a particular community can only vote for the representative of his/ her community. Muslim League in front and increase in communalism in the nation provided the accurate timing for bringing such reformations by British. This wasn’t the last but then again, they came up with separate electorates for depressed classes.

Poona pact, signed at Poona in 1932 resulted from the communal award of Aug. 4, 1932, made by the British government on the failure of the India parties to agree, which allotted seats in the various legislatures of India to the different communities. Mahatma Gandhi objected to the provision of separate electorates for the Scheduled (formerly “untouchable”) Castes, which in his view separated them from the whole Hindu community. Though in his cell at Yerwada Jail near Bombay, Gandhi announced a fast unto death. The stamping of the provisions of Poona Pact, 1932 were done in The Government of India Act of 1935 where reservation of seats for depressed classes was allotted.

Members who benefit from the reservation system means ‘paying back to the society’, which also needs to be seen as advocacy for uplifting the weakest.                                                                                                      -B.R. AMBEDKAR (at Agra on March 18, 1956)

This speech was made by him nine months before his death. His speech revolved around that the ones from the oppressed class or educated class from Dalits who have reached to some position due to reservation in education and employment due to the efforts of the leaders like B.R. Ambedkar, Jothirao Phule and Periyar and failed to pay back to the society. That wasn’t the motive of the reservation. It was empowerment from the long due shackles of the Varna system. It was annihilation against the atrocities of upper caste from making them believe they are no less than a human than people from other castes. It was a system for the elevation of the weakest. But we Indians have failed that miserably and lost the track of the purpose to bring in reservation. Today it is more of a political agenda than human rights thing. 

Post-Independence Era 

The constituent assembly gave many ponderous thoughts to the reservation policy and finally, it was brought in but initially, it was only for 10 years to socially uplift the underprivilege and stabilise them economically. Nonetheless, even after 73 years of independence, it is existence. 

From the beginning, only Scheduled Castes and Scheduled Tribes were the beneficiaries of this policy, but after the implementation of the “Mandal Commission” Report in 1980, Other Backward Classes also became an integral part of this scheme.

Evolution of Indian Reservation Jurisprudence through Judicial Paradigm 

With the first case of Champakam Dorairajan and Jagwant Kumar in 1951 came the first constitutional amendment and insertion of Art 15(4) that is special provision for the advancement of any socially or educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

The first constitution amended opened the room for changes in reservation scheme. Moving further with N.K. Thomas (promotion matter) in 1976 for the first time determined the scope of Art 16(4) that is whether it is an exception of Art 16(1) or an independent provision. The court reiterated by saying that Article 16(4) is not an exception to clause 1 but an example of quality by fact.

 Art 14 of our constitution provides two kind of equality one is negative equality and other one is positive equality that is people of the similar situation should be treated similarly. However, court in N.K. Thomas did mention that Art 16(4) is an enabling provision and cannot necessarily obligate the state to provide reservation.

Thereafter finally was Indira Sawhney case decided in 1993. This was a landmark judgement answering all the issues related to the reservation. It upheld the decision of the Union Government to provide 27% reservation in the government jobs for other backward classes. Removal of creamy layer from the benefit was introduced. However, this was put to lot of abuse in further time and therefore finally had to be removed. This judgement gave 3 conditions on which reservation should be provided one is backwardness, inadequacy of representation and without compromising the efficiency of administration which is definitely not the case today. In this decision reservation was only available till appointment but with time it upgraded to promotion and finally to consequential seniority.

After this several constitutional amendments were again made like 77th, 81st, 82nd and 85th, 93rd etc. Introduction of clause 4A and 4B of Art 16, which are provisions for reservation in promotion then removing the ceiling of 50%.Addition of proviso in Art 335, promotion with consequential seniority and reservation to other backward classes in all form of education institution except the minority institution was the insertion of clause 5 of Art 15 under 93rd Amendment. 

Until now with 103rd constitutional amendment finally included economically weaker sections of the society. 

Conclusion

The court has always put up a very generic approach while providing reservation. Until few years back castes were relevant issue for checking backwardness but today determining deviance of opportunity on the basis of caste is kind of remote. 

Hence lies the necessity now to change the paradigm of reservation and put everybody on the equal parlance. As we say if we are looking for real growth, there is need to identify the real victims and help them out beyond the walls of caste. This victim can be of any religion, sex, caste but that shouldn’t be the criteria to decide but it is the basic human rights that one should have. I believe that basic rights include education, housing, finance, health etc. India needs a change in approach than falling prey into the hand of political delude. 

About the Author: Abhilasha Jha | 12 Post(s)

Graduated from Nluo in 2020. Bears core interest in constitutional law. She is also very much interested in teaching law. Worked as a legal content writer for several other platforms before joining finology legal.

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