“I’m not against reservations. If the Constitution of India provides special privileges to backward sections of society, then it cannot be withdrawn.”
— Verghese Kurien
India is divided into many endogamous groups i.e. castes and sub-castes since 1500. In this caste system the people were divided into the four categories i.e. Brahmana, Kashtriya, Vysya, Shudra. In olden times, the castes which were considered high in the Hindu caste hierarchy i.e. Brahmins, Kshatriyas and Vaishyas, were well-educated and financially sound, while the lower castes i.e. Shudras, Dalits and Adivasis, were discriminated by the upper castes and denied education due to their low birth. The caste system has been a matter of contention ever since the British occupied India and remains a point of conflict till date.
The post independence (1947) period came with the great relief for the lower caste where the caste system was abolished under the Constitution of India and untouchability was declared as a crime under the law. In 1950 India was declared the socialist State. India has the Domicile reservation[i] of (50 – 85%) based on the domicile status of the people in various states and Union Territory of India. Many minority religious institutions like (Sikh, Christian, Muslim, Jain, etc.) already have (30–50%) of reservation for their communities in India. 3–5% of seats are reserved for the physically disabled people in India. Some seats are also been reserved for the sports persons, women, veterans etc..
The idea of caste based reservation system was envisioned by William Hunter and Jyotirao Phule in various forms in 1882 and implemented by Chatrapati Sahuji in 1901. The term was changed to “Depressed Class” in 1932 by Ambedkar and later to “Scheduled Caste/Tribes” during the framing of the constitution in 1950.[ii] The high objective and the final goal was to convert a society fragmented on the lines of religion, caste, economic status etc. into a homogenous society where identification of a person was not on the basis of the religion he professes or caste he belongs to but was on the basis of what he is or what he has made himself into. This is aptly clear from the statement of Pandit Jawahar Lal Nehru made by him on the floor of the Lok Sabha on 13.6.1951. He said
“……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……” (Lok Sabha Debates Vol XII-XIII (Part II) Page 9830-31)
Reservation at the time of independence was only meant to be a measure for the ultimate goal of “wholesome development”. The reservation system has received a mixed response from Indians since its inception. It has been praised for diminishing the gap between the upper and lower castes by allowing the latter to enjoy the further increased opportunities as the former in jobs, education and governance by allotting seats exclusively for them. It has also been criticised for alleged discouragement to merit-based system and encouragement for vote bank politics. Opponents of the reservation system claim that it reaffirms discrimination on the basis of caste. Some opponents also believe that the reservation system is essentially against the fundamental right to Equality. Allegations of Reverse discrimination are also heard of in public debates on the issue.
The Constitution of India states in article 16(4): “Nothing in [article 16] 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 the Scheduled Tribes.”[iii] Article 46 of the Constitution states that “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”[iv]
It is fair discrimination. The key point here in the practice of this is – there are no people from disadvantaged groups in the upper echelons of society, and as long as they do not have a percentage equal to their share in the population in these elite groups – administrative, education, political etc., these measures are necessary as they do not have the economic or educational resources to get to the top. “Without access to education, the poor will always be poor”
The Constitution guarantees equality to all citizens and thus establishes a rule of Non-discrimination by the state in any manner. It ensures and inures the state to treat all citizens equally and allow equality of status and opportunity to all and specifically provides that discrimination on the basis of religion, sex, colour, caste, race or the place of birth etc are impermissible.[v] And the only purpose or objective of reservation is to uplift lower strata of society, ensure proper political representation of minority groups and to ensure that minorities are not discriminated in job selections and promotion.
CASTE CANNOT BE A CLASS TO DEFINE “BACKWARDNESS” AS IT IS NOT THE ONLY DISADVANTAGE
If caste is the only ground for Social Backwardness, how can giving jobs or education will remove social backwardness. As evident in Southern India, the members of royal families, ruling classes, land-lords, and rich businessmen are considered to be backward by the Government because of their castes. They were kings and rulers for generations, and if the backwardness because of caste could not be removed, how could it be removed now?
Caste system is the greatest hindrance in the way of our progress to egalitarian society
The Chairman of First Backward Class Commission, Kaka Kalelkar, pleaded that the reservations and other remedies recommended on the basis of caste would not be in the interest of society and country.
In Indian society, caste is not the only obstacle in the way of development of an individual. Economic conditions, educational opportunities and discrimination on the basis of gender also contribute to the denial of opportunity to express one’s true merit and worth. The system of reservation should be such that it benefits only the people who are the neediest and not to those who are already in a comfort zone.
The Hon’ble Chief Justice Ray in the case of Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr. was of the view that:
”In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens. Caste cannot however be made the sole or dominant test….”[vi]
Also a bench of Justice Tarun Gogoi and Justice R F Nariman on March 17 of 2015, denied the grant of OBC status to Jats of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Delhi, Uttar Pradesh and Uttarakhand besides the districts of Bharatpur and Dholpur in Rajasthan. The apex court rejected claims that Jats were inadequately represented in government jobs, and found that they were adequately represented in the armed forces, government services and educational institutions. It said that the community was neither educationally nor socially backward. Also the community was adequately represented in armed forces, government services and educational institutions. Inclusion of a politically-organised class like Jat would adversely impact the welfare of the other backward classes. The apex court also directed the government to recognise emerging socially and educationally backward groups like transgender, who are among the most distressed. Centre can’t include Jats just for political purpose is the view of the court and “Caste” and “historical injustice” cannot blind a state in according backward status to a community.
Therefore, the progressive advancement of all citizens on every front, i.e. social, economic and education should be taken into account. The affirmative action should be based on their economic status and not their caste. This will make sure that all poor people benefit, instead of people of just certain castes or religion or gender, some of whom might actually be from a non-poor background’. Reservation should be on the basis of income level rather than caste as caste conscious measures will never eliminate caste consciousness.
“But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here.”
–John Marshall Harlan
[i]The word reservation is a misnomer. The appropriate word for it used in the Indian constitution is Representation. It is not given to anyone in his individual capacity. It is given to individual as a representative of the underprivileged community. The beneficiaries of reservations are in turn expected to help their communities to come up. The policy of reservations is being used as a strategy to overcome discrimination and act as a compensatory exercise. A large section of the society was historically denied right to property, education, business and civil rights because of the practice of untouchability. In order to compensate for the historical denial and have safeguards against discrimination, we have the reservation policy.
[iii] Article 16 of constitution of india
[iv] Laskar, Mehbubul Hassan. “Rethinking Reservation in Higher Education in India” ILI Law Review.
About the Author
Anubha Yadav is a third year student of B.B.A. LL.B. (Hons.) at ITMU Law School, Gurgaon. Her hobbies include reading, critical creative writing, basketball and photography. She is a rather active person and loves socializing with people. Besides being responsible, she is a good team player too. She has interned with various NGOs and advocates and is currently interning with the Model Governance Foundation.