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| Reservation In India |
Yesterday the Parliament passed the reservation bill with a whooping majority on last day of winter session of LS.
Now various questions have surfaced on reservation in the country again.
So Let's deconstruct this bill in the context of various court judgements in the past and the history of reservation in our country.
Initially, there were no provisions in the constitution for reservations to SCs, STs and OBCs in educational institutions and government jobs. Those provisions have been made in the later years.
First in the country, the Madras government provided reservations for SCs and STs in public educational institutions just after the commencement of constitution. Soon this was challenged in the Madras High Court and the government said in its petition that it has started this policy on the basis of Article 46 of the Constitution which says the state shall take steps for the advancement of SCs and STs whenever a member from SCs or STs community claim for reservations of seats or posts in public institutions. But the Madras High Court declared it unconstitutional and said that Article 15 and 16 outweighs Article 46 of the constitution so there can be no discrimination on the basis of caste.
Article 15 prohibits the state from discriminating anyone on the grounds of religion, caste, sex, race, place of birth or any of them.
Article 16 provides for equality of opportunity for everyone in public employment.
So if our constitution prohibits any discrimination on the basis of caste and prohibits any favour in the public employment on the basis of caste, how come there be reservations in our country.
So the Parliament came with an amendment to the Article 15 and Article 16 which was 1st Constitutional Amendment Act, 1951 in the independent India.
It added a clause to Article 15 and created Article 15(4) which made it possible for government to provide reservations to SCs and STs in public educational institutions.
Later the reservation was extended to government jobs by amending Article 16 of the constitution.
Article 15(4) says that nothing shall stop the government from providing reservations to the socially and educationally backward classes in educational institutions.
Article 16(4) says that nothing shall stop the government from providing reservations to socially and educationally backward classes in public employment.
Later the reservation in educational institutions was extended to private institutions as well.
Then a commission was created by the Moraraji Desai Government in 1979 to study the sections of society that are socially and educationally backward but don't belong to SC or ST Communities.This commission was headed by B.P Mandal and was popularly known as Mandal Commission.
The Mandal commission came up with its report and said that there were 52% of the people who were socially and educationally backward classes but didn't belong to SCs and STs.
Consequent governments under Indira Gandhi and Rajiv Gandhi rejected the Mandal Commission report.
B.P Singh's government accepted the report but it couldn't get implemented as the Government collapsed. Later the government under PV Narshima Rao provided reservations of 27% to Other Backward Classes and 10% reservations to Economically Weaker Sections of the Upper Caste. Soon this was challenged in the Supreme Court and Supreme Court's nine judge constitution bench gave its verdict in the Indira Swahney V/S Union of India, 1993 judgement.
SC declared the reservation provided to OBCs as constitutional but said that it should fulfil 5 requirements:
1. The Government should prove that the stated backward classes are socially and educationally backward.
2. The Government should provide data which shows that these communities are inadequately represented in educational institutions and public jobs.
3. There should be a 50% cap in the total reservations.
4. The Concept of Creamy layer should apply to these communities.
5. This should comply with Article 335 which says that the efficiency of administration should be maintained.
And the SC struck down the reservation provided to EWSs of the general category and said there is no provision in the constitution for reservation for economic backwardness.
There have been several attempts made by individual states to provide reservations exceeding the 50% cap and every time it has been struck down by various HCs and SC for breaching the cap.
This bill may pass the legal hurdle.
Because previous governments had breached the 50% cap with just an executive notification. But this time the government is bringing it through constitutional amendment act which will create 15(6) and 16(6) in the constitution and will provide provisions for reservations for Economically backward classes.
The SC in its Mandal Case judgement has capped it to 50% for caste based reservation but this bill talks about reservation on the basis of economic status.
And the 50% cap set by the SC is purely arbitrary in nature. There is no provision in constitution for 50% reservation.
This bill may not pass the legal hurdle.
Because reservation is provided to a community due to inadequate representation of the members of the community in public offices and this situation has arisen because the community has been historically discriminated socially and educationally for their caste. But EWSs of the upper caste never get discriminated socially and educationally.
The Supreme Court may say that this bill is breaching its judgement of 50% cap on the reservation so it's not acceptable.
So Let's wait and see what's happening in the court of law in the days to come.
But who will qualify for reservation under this bill?
Though it's not clear now as the central government says that it has been left to individual states to decide who will form the EWSs in their state.
But initial reports points 5 criteria for qualifying reservations under this bill:
1. The net family income must be below 8 lacs per annum.
2. The individual should not hold more than 5 acres of agricultural land.
3. The individual should not have more than 1000 sq feet residential plot.
4. The individual should not have more than 100 sq yards of plot in notified area council.
5. The individual should not have 200 sq yards of plot in non-notified area council.
Let's look into the several concerns raised on this bill:
1. The economic status is not consistent unlike caste. A person may earn 8 lacs per annum in a year and less than 8 lacs in the next year. How will the government deal with that?
2. How will the government ensure transparency in income declaration by individuals?3. Nearly 95% of India's population earn less than 8 lacs per annum so when the criteria covers almost all the population then what does this reservation mean?
4. Nearly 86% of India's population own less than 5 acres of agricultural land? So when the criteria cover so much people, how will it benefit the Poor?
5. How did the government come to a conclusion that 10% reservation is needed for EWSs. Is it based on any data?
There would be many implications of this bill one of which would be in removing the stigma associated with reservations.
But this bill has created a political consensus cutting across all political parties in the country which is obviously a reason to cheer.
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