A Constitution bench of the Supreme Court modified a 2006 Nagaraj judgement requiring the State to show quantifiable data to prove backwardness of a community for providing quota in promotions.
• In the recent judgement, responding to the government’s appeal for reconsidering the 2006 Nagaraj judgement, the Supreme Court held that states need not collect quantifiable data on the backwardness of SCs and STs for giving quota in job promotions. However, the top court did not comment on other two conditions given in the 2006 verdict.
• Implications of the Judgement of the Supreme Court:
- After this judgement, the members of the SC and ST communities, as mentioned in the Presidential List under Article 341 and 342 of the Constitution of India, will be presumed to be backward on account of their castes.
- Such communities will be given reservation in job promotions without the need of any data to act as a proof of their backwardness.
• M Nagaraj vs Union of India, 2006: In this judgement, the Supreme Court ruled that if the state wishes to make a provision for reservation in promotions for SCs/STs, it must:
- Collect quantifiable data showing backwardness of a particular class.
- Prove inadequacy of representation of that class in public employment.
- Prove that such a reservation in promotion would not affect the overall efficiency of public administration.
Background of Reservation Policy in India:
Reservation or affirmative action is the policy of favoring members of a disadvantaged group who suffer or have suffered from discrimination within a culture.
Constitutional Provisions that allows Reservation:
• The Preamble of the Indian Constitution aims at securing ‘Justice, social, economic and political’ – Reservation to weaker section of the society is an instrument of social justice.
• Article 14 incorporates within itself “equal protection of the laws” besides ‘equality before law’ – This means that a state must treat all individuals equally in similar conditions and circumstances.
• Article 15(4) enunciates that the State can make any special provision for the advancement of any Socially or Educationally Backward Classes of citizens (SEBCs) or for Scheduled Castes (SCs) and Scheduled Tribes (STs).
• Article 15(5) empowers the state to make any special provision, by law, in relation to the admission to educational institutions for the advancement of any SEBCs or for any SCs/STs.
• Article 16(4) empowers the State to make special provision for the reservation of appointments or posts in favor of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State.
• Article 46 directs the State to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the SCs/STs.
Forms of Reservation across the World:
• Quota System: Some countries use a quota system, whereby a certain percentage of government jobs, political positions, and school vacancies must be reserved for members of a certain group. For example, In India, Women have been given 33% reservation in Panchayati Raj Institutions (PRIs).
• Affirmative Action in USA: In 2003, US Supreme Court (Grutter V. Bollinger) permitted educational institutions to consider race as a factor when admitting students while prohibiting the use of quotas to maintain racial diversity in educational campus in achieving a more equal society.
• Affirmative Action in United Kingdom: It rendered affirmative action illegal because it does not treat all races equally. This approach to equal treatment is known as “color blind”.
- It focuses on ensuring equal opportunity through various measures such as targeted advertising campaigns to encourage ethnic minority candidates to join the police force. This is sometimes described as “Positive action”.
Current State of Reservation in India:
• At present, the maximum reservation quota has been capped at 50% by the Supreme Court.
• 22.5% of available seats are reserved for Scheduled Caste (SC) and Scheduled Tribe (ST) (7.5% for STs, 15% for SCs) whereas 27% of seats are reserved for the non-creamy layer in the OBCs. This takes the total reservation to 49.5%.
• The reservation policy in India has achieved permanence. It has become an identifying feature of Indian society, though it was initiated as a temporary provision.
Arguments in Favor of Reservation:
• Discrimination and inadequate representation: The societal inequality, oppression and discrimination in India is represented by the grossly inadequate representation of SCs, STs, and OBCs in employment and education due to historic, societal and cultural reasons even though their share in total population is more than two third.
• To favor the disadvantaged: The reservation is intended to balance with respect to the population size and hence favor the historically disadvantaged caste and tribes, listed as Scheduled castes and Scheduled Tribes by the Government of India.
• Growing Inclusive Progress: The reservation policy has led to inclusion for some, and there can be little doubt that the situation would have been distinctly worse without such affirmative action.
• Social justice: It is intended to realize the promise of equality and social justice enshrined under various Articles of the Indian constitution such as article 14, 38, 39 and 46.
Arguments Against the Policy of Reservation:
• Caste and Vote Bank Politics: It has become a political instrument whereby political parties use caste based reservation for electoral gains using caste as an identity marker.
• Exclusion for some: The benefits of reservations have increasingly accrued to the better-off, the more educated, among Dalits and tribals.
• Even those which are counted as SCs or STs, such as tribals living in the Bastar region,have not been able to avail the benefits of reservation.
Reservation in Jobs – Historical Developments:
• The Mandal Commission, appointed by the Morarji Desai Government in 1979, in its report recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs) alongwith the reservation for SCs and STs.
• The recommendations of Mandal Commission were accepted in 1990, by the V.P. Singh Government, whereby 27% of government jobs were reserved for the OBCs and 22.5% for SCs and STs.
• In 1991, the Narsimha Rao Government made two changes in the reservation policy:
- An additional reservation of 10% of jobs for economically weaker section of higher castes and
- Preference to the economically weaker section among the OBCs in the 27% quota.
• Indra Sawhney & Others Vs Union of India (Mandal case): In 1992, the Supreme Court examined the scope and extent of Article 16(4). The court nullified the 10% additional reservation for economically weaker section but it upheld the 27% reservation for the OBCs as constitutionally valid.
- The 1992 judgement in Mandal Case laid down the limits of the state’s powers: The ceiling of 50% quota, the concept of “social backwardness”, and prescribed 11 indicators to ascertain backwardness.
• It also established the concept of qualitative exclusion, such as “creamy layer”. The creamy layer applies only to OBCs and not to SCs and STs.
Case for Reservation in Promotions:
• In Mandal Case, the Supreme Court observed that reservation under Article 16(4) did not apply to promotions.
• The 77th Constitutional Amendment Act, 1995 added clause 4A to Article 16: It allowed the State to make provisions for reservation in matters of promotion in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented.
• The 82nd Constitutional Amendment Act, 2000 added a provision to Article 335 allowing relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion.
• In Nagaraj Case, 2006, Supreme Court upheld the validity of above given constitutional amendments and laid down certain provisions to be accepted while giving reservation in promotions.
• In 2018 Judgement, The Supreme Court ruled that states don’t have to collect quantifiable data on ‘backwardness’ for SC/ST quota in job promotions.
Case for Income Based Reservation:
• Reservation should be for the poor: To provide equal opportunity as far as equity is concerned, reservation policy should be associated with economic status and rich/ poor classification. This will prevent the privileged classes in minority communities from unduly benefiting from caste based reservation, whether it is in government jobs or admissions to educational institutions.
• Bridging urban-rural divide: India still lives in villages and instead of caste based reservation, income based reservation will be more beneficial because people from rural areas and low income groups will benefit.
• Eliminate Exclusion Errors: Income based reservation will ensure that people from high income groups are barred from advantages given that they have already received the benefits of economic upliftment.
- Many castes are making attempts to be classified as backward to avail the benefits, such as Patels, Jats, etc.
- Given the fact that they are economically and politically dominant, it seems ironical that they are demanding caste based reservation for their community.
• Avoid resentment: The absence of a criteria based on economic backwardness has led to resentment among the lower class of general category population.
• Weaknesses of existing system: The critics say that current reservation policy has failed to assimilate the SC and ST within the mainstream of Indian society.
• People from majority communities are facing unemployment too: Over the past few decades, India’s young working population has risen while the number of jobs have fallen. Existing system has proved to be discriminatory for those belonging to the general category.
• Educated youth will get better benefits: The poor, educated youth will benefit from income based reservation and get a chance to access a brighter future.
• Loopholes in Existing System: It is inextricably getting linked with vote bank politics rather than genuine consideration for the poor and oppressed in society. The political system has been using it for its advantage. Thus revisiting and amending the system has become the need of the hour.
• Caste based reservation has not prevented ill treatment of Dalit and lower castes: Discrimination is still rampant against members of SC and ST community especially in rural areas. Reservation in the name of caste has done nothing to prevent this.
Case for Reservation in Private Sector:
Arguments in favor of reservation in private sector:
• More than 85% employment is generated in Informal Sector: It makes a strong case for providing reservation in private sector. Further, the capacity of public sector in job creation has reduced significantly or became stagnant.
• Furthers the idea of social justice: The reservation in private sector will ensure fair representation of backward communities and will further the idea of social justice.
• Exemptions given to private sector companies: Many private sector firms get government aide such as tax holidays, infrastructural benefits, etc, in such a scenario reservation in jobs seems a logical extension.
• Lower strata population lacking required skills: Due to lack of soft skills such as English speaking, the SCs and STs are not able to get a job in private sector. Giving them reservation will only provide them a fair opportunity.
Arguments against Reservation in Private Sector:
• Restricting Freedom of Profession guaranteed under Article 19: Arm-twisting of private sector players to employ people through reservation will impact their freedom of operation and interferes with the right of the entrepreneur to choose the person he wants to work with.
• Affecting government’s flagship Ease of Doing Business and Make in India: Government is talking about ease of doing business and bringing in labour reforms, but bringing quota system in private sector will hamper their growth which is based on the concept of meritocracy.
• The Supreme Court in C&AG Vs. Jagannathan, 1987, held that article 16(4) has to be read with article 335 in as much as the latter stated that while considering the SC & ST claims, maintenance of efficiency of administration must be kept in view.
• According to ASSOCHAM, bringing reservation in the private sector would certainly create a big dent in the country’s
investment climate and negate the perception advantage given by a jump in the World Bank ease of doing business index.
• Corporate Social Responsibility (CSR): The private sector is already contributing in promoting social justice through CSR activities.
• Strengthening of Identity Politics: The reservation in private sector will only strengthen the caste identity markers thereby making the people vulnerable to vote bank politics.
• Thorough review of reservation policy is needed: It becomes important amidst demand of reservation by Patels, Jaats, Kapus, etc.
• Evidence based approach: Caste based reservation has not been completely successful in bringing up the weakest member of the group. Thus an Evidence based approach is being seen as an alternative for affirmative action.
• Case of subclassification of Backward Classes: The NCBC recommended sub-division of OBCs into “backward”, “more backward” and “extremely backward” groups and to divide the 27 per cent quota amongst them in proportion to their population, to ensure that the quota benefits can trickle down to the weakest section amongst the OBCs.
• Use Welfare schemes and Innovative Measures: Instead of promoting reservation in private sector, focus should be on elevating the status of the weaker section so that they may not require the benefits of quota.
- For example, Industry bodies such as DICCI (Dalit Indian Chamber of Commerce and Industry) should encourage Dalit Capitalism by following the principle of money as an equalizer. The promotion of Stand-Up India scheme is one such platform.
• Any policy that seeks to ameliorate the conditions of the backward classes in our society and make them worthy of competing with the others on terms of equality and nondiscrimination, is unexceptionable and deserves to be appreciated as forward looking.
• On the other hand, any effort at compensating for past wrongs in perpetuity is bound to generate a vested interest in backwardness and smacks of an approach of looking backward and not forward. The policy does not seem to be governed by any constitutional vision/principles as much as by the demand of vote bank politics.
• It has to be borne in mind that there are limits to the extent to which historical wrongs can be righted or compensated by any single policy. The need is to look forward and not backwards.
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