- Ms. Risha Fatema
LL.M, Dr. K. N. Modi University

“But if we go in for reservations on a communal and caste basis, we swamp the bright and able people and remain second-rate or third-rate” ~ Jawaharlal Nehru

At the time of drafting the constitution of India, draftsmen made the provision of reservation for some groups based on social and educational backwardness by providing additional seats, extra attempts, lower cut-off marks, and upper-age relaxation. Reservations were provided to uplift the status of those groups to a level where they can compete with the others. In the constitution these reservations were provided for thirty years as it was supposed that those groups would reach the level where they become equal to other groups however, after thirty years the situation was not as supposed hence it was extended for ten years and it keep extended for the ten years before the expiration of that extended period. However, after seventy-seven years of independence, we are quite developed and no longer need reservations except based on merit. It is the time when we need to give a fair opportunity to every individual to prove their ability for the position they are aspiring for. Because after this long period, we are getting the negative impact of reservation on the development of society and the country. The reservation system was introduced to reduce the caste-based differences, but this system is not decreasing rather increasing the differences, and it has become a vote bank for political parties.

Constitutional Framework

The constitution of India guarantees equality before law to every person and prohibits discrimination on the basis of religion, race, caste and sex. Although, it also has some exceptions provided under Articles 15, 16, 243D, 243T, 243ZJ, 330, 330A, 332, 332A, 336 etc.

Article 15 gives the power to the State to provide special laws for women, children, scheduled classes, scheduled tribes, or any socially and economically backward class as may be updated by the State now and then. Article 16, on the other hand, empowers the Parliament to make laws and the State to grant reservation in appointment and promotion to the classes that do not have considerable represented. The State shall consider the unfilled reserve vacancies for one year to the succeeding years.

The Legislative Assembly of the National Capital Territory of Delhi has reserved seats for the Scheduled Castes and Women as provided under Article 239AA. Furthermore, Articles 243D, 243T, and 243ZJ respectively, reserve seats in Panchayats, Municipalities, and Co-operative societies for scheduled castes, scheduled tribes, and women.

Part XVI of the Indian Constitution says about the “Special Provisions Relating to Certain Classes” of which Articles 330, 330A and 331 provide the reservation of seats for Schedules Castes and Schedules Tribes, Women and Anglo-Indian community respectively in the House of People, on the other hand seats in the Legislative Assemblies of the States are reserved under Articles 332, 332A and 333.

Anglo-Indian community also has reservation in services and education through Articles 336 and 337 however, this reservation does not exist now as it was only for a limited period of two and three years respectively from the implementation of the Constitution of India.

As per the Article 334 of the Indian Constitution seats for Scheduled Castes and Scheduled Tribes and the Anglo-Indian community are reserved for a fixed period. The period for reservation of seats was thirty years at the commencement of the Constitution and now it is eighty years after being amended for five times.

Some Recent Additions

One Hundred and Third Constitutional Amendment Act

One Hundred and Third Constitutional Amendment Act, 2019 introduced a ten per cent reservation for the Economically Weaker Sections (EWS) for school enrollment, colleges, etc., whether run by the government. or private institutes, in addition to the existing seats for every category. Reservations are also provided in matters of appointment.

One Hundred and Fourth Constitutional Amendment Act-

The Constitutional (One Hundred and Fourth Amendment) Act, 2019 commenced on January 25, 2020, extended the reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha and the Vidhan Sabha of the States for ten more years by substituting the words 'seventy years' by the words 'eighty years', in the Article 334 of the Constitution.

One Hundred and Sixth Constitutional Amendment Act

This One Hundred and Sixth Amendment Act of 2023 added provisions of reservation for women and separately for women of scheduled castes and scheduled tribes in the Vidhan Sabha of the National Capital Territory of Delhi, the House of the People and the Legislative Assembly of every State by inserting sub-clauses (ba), (bb) and (bc) in clause 2 of Article 239AA and Articles 330A and 332A.

Categories and Quotas for the Reservation

The structure of the Indian Constitution provides reservations for women, scheduled castes, scheduled tribes, Anglo-Indian community, and other socially and educationally backward classes.

The reservation of the Government of India provides fifteen per cent reservation for Scheduled Castes, seven and a half per cent for Scheduled Tribes, and twenty-seven per cent for Other Backward Classes in direct recruitment at the India level.

Different organizations, educational institutes etc. have different numbers of seats for every category. The reservation quota is different in each State as per the population of a particular category in that State.

Impact of Reservation

Reservations were introduced for the upliftment of the marginalized sections of society, but now, sometimes, these are being misused. Let’s understand this with a scenario: A and B are both civil services aspirants. A belongs to a “reserved” category, and B belongs to the “general” category. Both appeared for the exam and qualified for the interview. The final cut-off provides sixty per cent as the minimum required per cent for the “reserved” category and ninety per cent for the “general” category. A, who got 65%, qualified for the position, and B could not qualify for the position after getting 89%. 

This is clear discrimination, one aspirant who scores more marks is not qualified for the position and another aspirant who scores less marks gets that position. In the twenty-first century, we need fair competition where a candidate gets an opportunity only based on merit and not because of his or her caste.

The discrimination does not end here. The seats which are reserved for such categories can only be filled by them and the remaining seats for the general category can be filled by these reserved categories if they qualify by merit. 

A reservation does not just harm the non-reserved category, but on the reserved category. Because reserved category candidates get admission in educational institutes with minimum marks by relaxation in the entrance exams, which makes them less competitive in the job market later.

The reservation also leads high rate of brain drain in India. According to the annual report of the Ministry of External Affairs 2023-24 approximate 9 lakh students are pursuing higher education abroad and other data shows that India has 15,850,612 Non-Residential Indians (NRI).

Case Studies on Reservation

The first case on the reservation that led to the first amendment of the Constitution, State of Madras v. Smt. Champakam Dorairajan 1951, the court set aside the order of the Madras government to provide reservations based on caste in colleges of medical and engineering. In T. Devadasan v. Union of India and Anr. the apex court ruled that the unfilled seats for reserved categories in a year cannot be carried over to the following year. Indra Sawhney v. Union of India, 1993 is the leading case on the reservation system. This case laid down some important points related to reservation, such as – 

• recognizing the economically backward class, 

• The impression of a creamy layer prevails,

• stated that the reservation should not exceed 50% of the overall seats,

• A reservation should be provided for jobs and not for promotions, and

• Reservations are not intended as an economic welfare measure but rather function as an atonement for past segregation and discrimination.

In M. Nagaraj v. Union of India, 2006 Hon’ble Supreme Court provided the following requirements to fulfil a valid reservation-

• The scheduled caste and scheduled tribe do not have enough representation.

• These communities should be socially and educationally backward, and

• The overall efficiency of administration shall not be affected by the reservation.

In Jarnail Singh v. Lachhmi Narain Gupta 2018, the court ruled that the exclusion of the creamy layer extends to the scheduled castes and scheduled tribes; therefore, people belonging to the creamy layer of the community cannot get reservation in promotion granted by the State.

In the recent case of Janhit Abhiyan v. Union of India (UOI), 2022 Supreme Court held that the creamy layer shall not be included in the reservations and reservations should be provided only in appointment, not in promotion. Further, said that more than fifty per cent of reservations cannot be provided.

Conclusion

There is no conflict that the reservation system was needed to uplift the groups who faced discrimination in the pre-independence period in the name of the caste system. These people did not have access to many things and were treated as untouchables. After independence, everyone was considered equal, and provisions were made to provide equal opportunities. But to provide equal opportunity, it was necessary to take every individual to the same level, for this reservation system was introduced, and now, after all these years, we have reached the state where every individual can compete with each other at the same level to access an opportunity. And there are so many instances where a member of a bureaucrat's family got a position because of reservation. Hence, we need to revise the reservation system of our country and provide fair competition.