RESERVATION SYSTEM IN INDIA : A CRITICAL ANALYSIS

 

What is reservation?

To make special provisions in public employment, educational institutions and legislatures for the upliftment of those citizens of Indian society who are backward on social, educational and economic grounds.

This is an example of a positive system for building an egalitarian society by providing equal opportunities and prestige to all in the society.

 Background

In the year 1882, William Hunter and Jyoti Rao Phule first introduced the idea of ​​caste based reservation.

- The Government of India Act, 1909 / Marley-Minto Pact, Poona Pact, the provision of reservation in the political system of British India by communal award in the 1930s.

After the end of colonial rule

Reservation in public sector employment in the Constitution of India - Article 15(4) and Article 16(4).

Article 16(3) - Nothing in this article shall prevent Parliament from making any law with respect to the employment or appointment of any class or class of people under the Government of any State or Union territory or any local or other authority. (Depending on residence)

- Article 16(4A) - Reservation in promotion (85th Constitutional Amendment Act, 2001)

- Article 16(4B) - Merging of vacancies of previous year also in the next year (81st Constitutional Amendment Act, 2000)

- Provision for reservation in Parliament for SC and ST in Article 330.

- Reservation in Panchayats for SCs & STs in Article 243D.

- Reservation in urban bodies for SCs & STs in Article 233T.

Efforts made by the government in relation to the policy of reservation-

• In exercise of the powers conferred by Article 340 of the Constitution, the President in December 1978, B.P. A Backward Classes Commission was appointed under the chairmanship of Mandal.
• The commission was set up to set criteria for defining the "socially and educationally backward classes" of India and to recommend steps to be taken for the advancement of those classes.
• The Mandal Commission concluded that OBCs constitute about 52 percent of India's population, so 27% of government jobs should be reserved for them.
• Recently, the Constitutional Amendment (103rd) Act of 2019 has provided 10% reservation in government jobs and educational institutions for the "economically backward" class or economic weaker sections (EWS) in the unreserved category.
• The Constitutional Amendment Act amends Articles 15 and 16 of the Indian Constitution by adding clauses empowering the government to provide reservation on the basis of economic backwardness.
• This 10% economic reservation is over and above the 50% reservation limit.

The stand of the judiciary in the context of reservation-

In the 1992 Indira Sawhney case, the Supreme Court struck down a government notification reserving 10% government jobs for economically backward classes in upper castes, while retaining the 27 percent quota for backward classes.

In the same case, the Supreme Court also upheld the principle that the combined reservation beneficiaries should not exceed 50 per cent of India's population.

The concept of 'creamy layer' was also strengthened through this decision and provision that reservation for backward classes should be limited to initial appointments only and not to promotion.

In M. Nagaraj v/s Union of India 2006, the Supreme Court upheld the constitutional validity of Article 16(4A) and held that any such reservation policy to be constitutionally valid would satisfy the following three constitutional requirements—

(i) Scheduled Castes and Scheduled Tribes community should be socially and educationally backward.

(ii) Scheduled Castes and Scheduled Tribes communities are not adequately represented in public employment.

(iii) Such reservation policy shall not affect the overall efficiency in administration.

Why reservation?

• To remove historical injustice.
• To create a level playing field to ensure that everyone has equal access to resources and opportunities.
• There should be adequate representation of the backward in public employment.
• To remove gender inequality in the society by advancing women.
• Broaden the thinking of policy making.

Why in the private sector-

• If historical injustice is to be removed, then the private sector will also have to be involved.
•  In this era of economic inequality, the private sector has the most resources (the income of the top 10% of the rich is 57% of the total income of the country. While the income of the bottom 50% of the population is only 13% of the total income of the country)
• It was supported by Dr. Ambedkar.
• Helped in solving problems like Naxalism, Terrorism.
• If the system of reservation is possible in private educational institutions then why not in private industry.
•  Loss of employment due to Covid.

   Arguments against private reservation-

• Against the spirit of ease of doing business and the principle of minimum interference in the state.
• Based on the experience of the public sector, it can be said that this will negatively affect the productivity and efficiency of private industries. This will give Indian private industries a competitive edge at the international level.
• Public sector posts are vacant first they should be filled completely and assess the situation. At present, despite the 27% reservation reserved for OBC castes, only 12% is utilized.
• At present, foreign forces are also involved in problems like Naxalism, so it would be a big mistake to consider reservation only as its solution (Urban Naxalism).
•  There may be an excessive increase in regionalism which can create obstacles in the internal security and social harmony of India.
• Will discourage programs like Make in India.
• Strengthens caste system which is against Article 14.
• There is no provision for reservation in private sectors in the constitution.
• The issue of economic loss due to land acquisition can be resolved through DBT (Direct Benefit Transfer).
• Corporate Social Responsibility provision has been made in the Companies Act, 2013 which makes it obligatory for the private sector to compensate the local people for the loss caused in order to set up the industry.

Solution

(i) The 75% ceiling of reservation currently fixed by the Haryana Government in the private sector reflects the extreme limit of reservation and presents the concept of reservation as the only option to solve problems like unemployment. At the same time, it also does not take into account the productivity of the individual, so the state government should limit the reservation limit to such a situation that neither the private sector is affected nor the feeling of dissatisfaction arises in the local community. Apart from this, the provisions relating to reservation should be linked to the performance of the person at the work place.

 (ii) There should be a provision of reservation for only one person of a family and families who have already availed the facility of reservation in the public sector should be excluded from it.

(iii) While giving reservation in the private sector, the concept of 'creamy layer' should be extended to the Scheduled Castes, Scheduled Tribes also.

(iv) The system of reservation cannot be a permanent solution to unemployment and other internal security related problems. Therefore, the government should pay more attention to skill development.