Indian Reservation System

                                  Indian Reservation System

Reservation Meaning

·         The purpose of reservation is to provide social  justice to the disadvantaged, Oppressed and backward classes.

·         Under this reservation system, some place are reserved for socially, educationally and economic alter weaken sections, Keeping them separate from the general competition in areas of public importance.

·         The rule of public competition are relaxed to ensure the success and representation of the people of these classes.

·         Simple meaning of reservation is preference of depress class.  

                                              Indian Reservation System

·        To understand this Subject Indian Reservation System first you have to go through with article 14,15,16.

These are the important fundamental rights which describe the Reservation System of India.

·         Article 14 basically deals with two thing

1) Equality before law

2) Equal protection of the laws

·         This equal protection of laws is the main point to understand the Reservation System of the India.

·         If we want to understand Reservation System of India we need to first understand the Equal Protection of the law with great clarity.

·         This Provision Equal Protection of the law is something which we have borrowed from the constitution of United State of America (USA).

·         It basically tries to ensure that depressed people are to be treated as people or like to be treated as likes. People in similar circumstances (stage) are to treated as same or similar.

·         For Example

 assume you are in soccer field (football ground) with three friend one is too long to see foot match from wall. Second is short in respect of first friend but he can sec math with difficulty and third one is too short in respect of both first and second and he cannot see match from wall.

·         Think this is matter of state and state decided to not interfere in this given situation that means the state is treating everyone equally.

·          (You think is this equality) Yes, because equality concept says treating everybody equally no matter what the situation is this is the equality concept says. Treat everyone equal. 

    ·         (But you think is this justice) No, Justice would be if the states interfere in this given situation and provide a support on stool to person B (second person) So that now he can watch the match comfortably

·         Also provide bigger help or support, stool to person C so that no he can watch comfortably.

·         This thing equality plus justice that is them of equal protection of laws.

That means equal protection of the law is basically a positive concept.

Equality plus justice is equal protection of laws and this something which we can called a affirmative policy of the state.

·         [That mean here the state has a policy of discrimination that mean the state has discriminating].

Now the question will arise how state discriminating.

Now see how the state is discriminating -:

state is not providing any thing to person A but providing some thing to person B and providing some thing more than person B to person C.

·         Is this a discrimination ,Yes the state is discriminating but his we can called a positive discrimination. So that person B and Person C can match the person A that we can say that is equality.

That mean equality plus justice is equal protection of the laws that mean affirmative action policy is generated under equal protection of the laws.

·         After understanding all this concept and meanings it shows that Positive discrimination is the heart of the article 14.

·         Now replace all this person A, Person B and Person C and put social communities person A as upper cast people and person B as middle cast people as OBC and person C as Schedule tribes (ST) and Schedule cast (SC) and now think this is right.

History of this social communities

Now to under this reservation more display you have to understand the title bit history of Indian Social Society to deal with this article 14 of this Constitution.

·         Dalits of this country was historically discriminated and disadvantaged by the rest of this society.

·          Take the Example of B R Ambedkar the artist of the constitution of the India. He was also a Dalit. In childhood or in Younger age he could not drink water or fetch water from the well of upper cast people he can only drink water only from his own community of well.

Now the question arise why he can not drink water from the well of upper caste people because this well was only allocated for upper caste people no matter lower cast allocated well is dried or whatever happened with that well they cannot drink or fetch water from the well.

·         B.R ambedkar In his biography shared a story of his childhood that most of the time he could not drinked water for a day in school because water is allocated for upper cast if peon absent no one would give water to ambedkar. Even he cannot fetch water because if he touched or fetch water from allocated water of upper cast water would pollute.

PUNITY AND POLLUTION

·         This discrimination was based on twin concept of purity and pollution. It was argued that Dalits or lower cast people there dress, drinking habits, water, food habits, even foods are polluted and on the other hand upper cast people there dressing style, dress, food, food habits, water drinking habits are pure.

·         That’s why the mind was creating a binary on difference between purity and pollution this twin concept of purity and pollution given the birth of untouchability. This concept of untouchability used in this country for centuries.

·         Think you are a Dalit and you are walking on the road and you saw a upper cast people is coming from other side and you jump in pit or mude or change the path because your schadow can pollute the member on upper cast and you have to also carry a pot around your neck and you have to spit into the pot not on the road because your spit can pollute the road and you have also carry a broom around your waist because your foot steps can pollute the road.

·         This was the harsh reality of Dalit in our history. This twin concept of purity and pollution was basis of discrimination in this country. Members belonging from lower community they were socially discriminated by upper cast people and they also interfere in the education opportunity of lower cast members. They limited the reach of education opportunities and discriminated socially.

Now these community were declared as socially and Educationally backward.

·         This was the main reason why reservation was entered in our Indian Constitution.

·         That means the reservation system in this country is possible because article 14 takes about equal protection of the laws.

1) Article 14 talks about positional discrimination.

2 )Article 14 takes about affirmative action policy for socially and educationally backward class of the citizens this citizens are STs/SCs they were discriminated centuries.

·         To provide justice to them reservation policy introduced in constitution of this country.

That is all about equal protection of laws mentions in our Indian Constitution

Article 15

Article 15 is basically talks about no discrimination. It means state shall not discriminate against its citizen only on the grounds of religion, race, cast, sex on place of birth.

·         That means state can not discriminate its citizen only because they belong to a particular religion, race, cast, sex or place of birth.

Now the question arise that state can discriminate with it citizen, yes state can discriminate with its citizen but that state need a additional ground, on the basic of valid discrimination can be made how?

Example – Think that you are a student and you are approaching a university to take admission in post graduate program but university denied you to take admission and you assume that university has discriminating with you only on the basic of religion, sex, race, cast, on place of birth. You approach to supreme coat of India (Supreme court of India is the protector of fundamental rights of Indian Citizen).

·         Supreme court issues a notice against the University asking how can you discriminate with this citizen primarily on the ground of religion, caste, sex or place of birth.

·         Now the University replies that, Yes we have discriminated against this citizen not only on the basis of sex, caste, religion, Race on place of birth but because of something else, now what is this something else education qualification.

You have to be graduate to seek admission in postgraduate course program. But this individual is not graduated he is only 12^th pass , how can we provide admission to post graduate program for someone who is only 12^th pass, that mean yes university is discriminated with not only on the basis of religion, cast or sex, race, place of birth. University discriminated with you only on the basic of education qualification.

·         This is what we called article 15 of Indian constitution. It basically talk about non discrimination, that mean no citizen shall be discriminated only on the ground of religion, race, cast, sex on place of birth, that mean if state discriminate with its citizen there must exit an addition ground on which valid discrimination can be made.

History of Article 15

·         The year 1950, Immediate after the establishment of constitution of India. The Madras Government enacted a policy In government engineering and medical colleges seats should be reserved for SCs/STs community.

·         After this policy a men went to coat against this policy of Madras Government and filed a case against Madras Government and said how the state can discriminate with its citizens only on the Basic of Cast and how someone get admission only on the basic of cast. This policy is unconstitutional.

·         This case is also known as Champakam Dorairajan v/s state of Madras in 1951.

·         After this supreme court issued a notice to the government of Madras and government of Madras replied and said we are only implementing article 46 of the constitution of India.

What is article 46

It deals with directive principle of state policy DPSP

·         Article 46 basically talks about that state shall take steps to protect the educational interest of those who are socially and educationally backwards including STs/SCs.

·         The government of Madras replied that we are only trying to implement article 46 DPSP of the constitution of India and constitution has made clear that state shall take steps to implement this article 46 that is why we are providing reservation in educational government engineering and medical colleges to student belonging SCs/STs community.

·         The supreme court said this Madras government order is un constitutional because you are trying to implement DPSP but in this process you violating fundamental right. Fundamental right is superior to DPSP even if you are enacting a policy it is un constitutional.

·         That is how Madras government policy was declared un constitutional by Supreme of India.

·         All about very famous case of 1951 Champakam Dorairajan v/s state of Madras.

After this incident parliament got together and amended the article 15 the constitution of India and exception was added 15(4) in constitution.

Article 15(4)

·         1^ST Constitutional Amendment 1951.

·         Does not ban 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.

·         After this amendment constitution made clear that state can made special provision for social and educational backward classes citizens of India.

·         After this amendment seats were reserved in all government educational institution for those who were belonging from scheduled caste and the scheduled tribes.

In this amendment article that was a little bit of fault what was that it only give reservation in government institution not in private institution. Government of India understand this problem and in 2005 this problem was solved.

15(4)

In 2005 Parliament got together and amended article 15 and exception was added 15(5)

·         93^rd Constitutional Amendment act 2005

·         Confers power on the state to reserve seat in Favour of backward classes of citizens who are socially and educationally backward in educational institutions (including unaided private institutions but excluding the minority institutions).

After this amendment seats was reserved in all government and private educational institution weather aid an unaided only excluding minority institution from reservation of seats for SCs/STs community and OBC.

Article 16

·         Article 16 basically says these shall be equality of opportunity in matters of public employment.

·         That means wherever Government advertise on post these should be equality of opportunity and these shall be no discrimination only on the ground of religion, race, caste, sex, place of birth on residence.

·         Now the question arise can be there a discrimination , Yes but for that additional ground should be these on the basic of which valid discrimination can be made what is this additional ground.

Examples-: Think you are preparing for UPSE civil services examination. The result has been announced your name is not in the list and you will approach to supreme coat that article 16 is getting violated article 16 says these shall be equality of opportunity in public employment jobs my name is not in the list. That means article 16 has been violated just because I belong to a particular religion, race, cast, sex, place of birth, Residence or decent my fundamental rights has been violated. The supreme coat will issue a notice to Union Public Service Commission have you discriminated against this individual, against this citizen of this country. The UPSC will reply, Yes we have discriminated against this individual but not only the grounds that he belonging to a particular race, religion, caste, sex, place of birth residence on decent. We discriminated on additional ground he did not appeared in examination or his age is not in his site minimum age it to appear in this examination is 21 but he is only 19. That is why we have not consider him for this examination maximum for general is 32 and he is only 35 that’s we have not consider him for this examination.

·         That mean age can be a ground of discrimination, education qualification can be a ground of discrimination, these should be no discrimination only on the ground of religion, race, cast, sex, place of birth, Residence or decent.

Exceptions of Article 16

16(4)

·         Article 16/4 says that state is empowered to reserve seats in favour of backward classes (SC & ST included) in public employment provided these classes are not adequately represented in the services under the state.

Entry of OBC reservation and 10% reservation for EWS economic weaker section.

·         1975 Emergency was in imposed in this country it remain Inforced for 2 years.

·         In 1977 in a dramatic fashion Indira Gandhi decided to revoke emerging and then the election was announced and Indira Gandhi was voted out of power and then come Janta party Morarji Deshai was appointed as Prime Minister of this country.

·         In this tenure he decided to appoint a committee headed by Bihar Politician B.P Mandal.

·         The year was 1979 Mandal committee was setup.

·          B.P Mandal task was to constitute a community to identify socially and educationally backward classes citizens of this country except SCs/STs are there other community in this country who are Educationally and Socially backward because government want to provide affirmative action policy to them.

·         After four year 1983 the report was submitted by B P Manda. In 1983 The Prime Minister was Indira Gandhi she decided to not act on this report.

·         After the death of Indira Gandhi Rajiv Gandhi was appointed as Prime Minister of India he also decided to not to act on this report.

·         1984 General election held Rajiv Gandhi voted back to the Power with thumping Majority and for 5 years he decided not to act on this report but same thing happened when Rajiv Gandhi was the prime Minister, Massive scam was broke out. That scam was Bofors scam. Defense Minister of Rajiv Gandhi was Vishav Nath Pratap Singh famously known as V. P. Singh.

·         V P Singh resigned as defense minister, he launched an anti corruption crusodes against Rajiv Gandhi Government.

·         1989 General election was held Rajiv Gandhi voted out of power and v.p singh was appointed as Prime Minister of this country But he could not get the majority on his own he was supported by two ideological Opposites.

·         V P Singh Government was supported by right wing political part BJP on the left he was supported by communist.

·         V P Singh know that I will not survive as a prime minister of this country long, he decided to leave his legacy behind him.

·         What he did for that he tried to implement the Mandal commission report.

·         Mandal committee report said that 52% of population excluding SCs/STs are socially and educationally backward and Mandal Commission Recommended 27% of reservation for these OBC Other Backward Caste in government jobs and educational institution.

·         This Mandal committee report, V.P Singh government tried  to implement this report.

·         Due to the action of V P Singh government BJP withdraw his support from this coalition government and the result happened V P Singh government fell after this new prime Minister was appointed Chandra Shekhar but he also could not survive long as Prime Minister of India.

·          After the fell of government again general election held in 1991 This time congress party emerge as a single largest party in election. P V Narsimbha Rao decides to expand this reservation policy.

·         P V Narsimbha government was agree with 27% reservation for OBC but they also want 10% reservation for economically weaker section of society. In government jobs and educational institutions.

Protect Against Mandal Commission Report

·         This protest was not limited in single state it spread all over India. These protest was horrific in north India because large number of upper cast people survive in North India. In south India it was not so horrific because in specific place upper cast people survive in south India.

·         Ram Chandra Guha wrote in his book how the horrific situation was in India against Mandal commission.

·         During this protest one Delhi university student Rajiv Goswami self lit up himself with rajiv Goswami 60 civilian sacrifice himself against this Mandal Commission.

·         During this protest one lady lawyer understand this protest with very closely and she decided to approach the supreme court and filled a P.I.L  (public interest litigation). That lady who approach to supreme coat her name is Indra Shani.

·         This case become famous as Indra Shani vs union of India or famously refer as Mandal Case.

·         In this PIL Indra Sawhney argued that this 27% of reservation for OBC is un constitutional and 10% reservation for EWS is also unconstitutional.

·         Supreme court in his verdict says that reservation for OBC Upto 27% in educational institute and in government job is constitutional Supreme court said it is because of article 16(4) which enables reservation in this country.

·         Supreme court said reservation for OBC is constitutional but for that 5 condition to be met.

What are these condition

·         Supreme coat said prove to us by Data on any other evidence that those whom you are calling OBC. They are socially and educationally backward citizen of this country.

·         Article 16 talks about reservation for only those who are educationally and socially backward.

·         The backward classes in the opinion of the state are not adequately represented in the public employment administration.

·         The concept of creamy layer shall apply to the OBC.

·         Creamy layer concept->  If any one belong to OBC, community and his annual house old income is more then 8 lakhs on own a piece of land beyond a certain limit or own a property beyond a certain dimension they belong to creamy layer of OBCs communities for these creamy layer. There shall be no reservation.

·         That mean reservation is only for non creamy layer individuals on for those whose annually income is less than 8 lakhs after those whose own a piece of land less then a certain limit or for those who own a property less then a certain limit.

·         The reservation cannot, at any point exceed 50%. 

That means if these is SC reservation of 15% or ST reservation of 7.5% or OBC reservation of 27% its total is 49.5%. The total reservation for STs, SCs, OBCs should not go beyond 50%.

·         The overall efficiency should not be affected as required under the article 335.

Subject to efficiency in Administration.

It mean efficiency in administration should not compromise at any cost merit should never be sacrifice.

Supreme coat added two more verdicts

1.       The power conferred by article 16(4) enables the state to provide reservation only at the entry level, i.e. at the time of recruitment, and not promotions.

2.       The reservation based upon economic backwardness among the general category is no criteria to extend reservation.

·         Supreme coat said 10% reservation for EWS is unconstitutional because constitution says only 2 type of backwardness

·         Social and educational economic backwardness is no criteria in this country to allow reservation.

This what Indra Sawhney vs union of India Judgment of 1992 talked about.

In 1995 Parliament got together again and amended the article 16 and added article 16(4a). This was 77^th constitutional amendment act This 77^th constitutional amendment act provides reservation for SCs/STs In promotion.

·         This constitution amendment act was challenged in supreme coat. This case was  M.Nagaraj v/s Union of India 2006

·         The supreme coat said reservation for ST/SC is provided constitutional but it does not affect the efficiency in the administration in negative manner.

EWS Reservation 10% Quota

·         In 2019 103^rd constitutional amendment act was passed by the government. This constitutional amendment act said 10% seat in education institution and government jobs shall reserved for economic weaker section of the society EWS.

Criteria of Reservation for EWS

·         The quota can be availed by persons with an annual gross household income of upto 8 lakh.

·         Families that own less than 5 acres of agricultural land

·         House less than 1000 square feet

·         A plot of less than 100yards in a notified municipal area on less than 200 yards plot in a non notified municipal area.

                                                                                                         BY ADITY AND HIS TEAM