Parul
Indian Reservation Policy
Parul Madaan 5 Mar 2020

Indian Reservation Policy

Introduction

Exclusion is fundamental to the system, and therefore a consequence of its basic feature. Social Exclusion is caused by endogamy practices and social division between caste and classes. Every caste has suffered from unfair and hierarchical assignment of privileges, excluding those at the top of the caste hierarchy. The men who were at the bottom of the caste hierarchy previously marginalized are the ones who suffered most. For instance, apart from manual labor and certain jobs considered impure and polluting, the right to do business or own property was denied to the poor communities. The right to education and the civil cultural and religious freedoms were even denied to them. In addition they were made to suffer from residential discrimination and social isolation because the high castes found them impure and polluting and not fit for social association. The father of Indian constitution Dr. B.R. Ambedkar had introduced the system of democracy in the constitution after independence.

India is the largest democratic system. Equal representation in all parts of the country should be the right of democracy citizens. Based on the principle of democracy, reservation policy is a set of affirmative actions pursued by reserving access to seats for equal representation in government jobs, higher educational institutions and politics to provide social and educational backward quotas in India. Reservation policy had not aspired to the results, as it was not supported by a more comprehensive plan that actually tackles systemic injustice and inequality.

Reservations are regulated by constitutional laws, and municipal regulations and rules. Scheduled castes, scheduled tribes and other backward groups, and backward classes among Muslims in some states under a category called BCM, are the primary beneficiaries of constitutional reservation policies. In the Indian constitution the principle of equal representation pervades the provisions. The fundamental aim of the Indian constitution was to establish an egalitarian society in which social, cultural, and political justice prevailed and status and opportunity equality was made available to all.

 

 

Concept of Reservation

According to Justice Chinappa Reddy : "Reservation is not a charity it is a representation." Reservation in common terms refers to an act of reserving or withholding reservation in Indian law. It is a form of an affirmative action whereby a percentage of seats are reserved in the public sector union and state civil service union and state government departments as well as in both public and private education. The reservation scheme is also applied for the scheduled castes, scheduled tribes and other backward classes  for representation in the parliament of India.

Pursuant to Article 16(4) and Article 335 there is no time limit for reservations in facilities provided by government resolutions. India's constitution is against any form of discrimination in both the public and private sectors. Though  the Government has a right under the Constitution  to take special steps to uplift the deprived classes. The Constitution speaks only about jobs reservation. It does not address any specific percentage of job reservations, so the percentage varies from time to time depending on census.

The reservation of seats in the legislatures was initially for ten years, as specified in Article. 334,  the Constitution of India. Subsequently, a series of constitutional amendments expanded it for more years. Therefore, in every 10th year, the issue of political reservation comes up for extension in Parliament.

Reservation in Employment :

Under Article16(4), Indian Constitution provides for reservation in jobs. It gives the State the power to make certain provisions for reserving positions or jobs in favour of any backward class of citizens who, in the State's view, are not adequately represented in the services provided by the State.

Therefore, Article 16(4) shall apply only if two conditions are fulfilled:

1.      Citizen class is retrograde.

2.       The class is not adequately represented in the services provided by the State.

Article. 16(4), must be read in the light of Art. 335 which states that the representations of Schedule Castes and Schedule Tribes shall be taken into account in a manner consistent with the maintenance of administrative efficiency. The reservation for backward classes should not be unreasonable. It should be regarded with respect to the general public's employment opportunities.

In Article. 16(4) the word "reservation" means a specific quota reserved for a special category of individuals. It has been held that the very object of reservation is to shield the weaker section of society   against competition  from the candidates of the general category. It has also been accepted that reservation meant the selection of less meritorious men. If the constitutional pledge of social justice is to be fulfilled, this expense must be paid.

It is a settled law that reservation provisions may be made either by law enacted by the legislature or by an executive order issued by the State in the exercise of its executive power without any legislative assistance.

It was also claimed in Valsamma Paul v. Cochin University's ct., 1996 (3) SCC 545 that acquiring the status of Scheduled Caste etc. by voluntary mobility in these categories or transplantation in backward caste by adoption, marriage or other voluntary act would not, as the case may be, entitle a person to take advantage of the reservation either under Article. 15(4) or Article. 16(4).

Article. 16(4) is not an Exception to Article. 16(1):

Article. 16(1) states that “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”.

Art. 16(4) is an enabling provision which gives the State the power to make reservations for appointments in favor of backward classes of citizens who are not adequately represented in the State's services either numerically; 0* 7 or qualitatively. It does not confer on citizens the right to claim reservation. Art 16(4) on has not been considered necessary.

Reservation in Promotion - [Article. 16(4A)] :

In S. Rly. V. Rangachari AIR 1962 SC 36, the Supreme Court held that reservation could be made pursuant to Art. 16(4) not only at the initial stage of recruitment but also in matters of promotion from the lower to the higher post or office. It was a rule that lasted for more than 30 years. Nevertheless, after taking all the circumstances into account, the majority in Indira Sawhney v. U.O.I  (supra) said that Article. 16(4) did not consider or authorize reservations in promotions, although the term "appointment" in Article. 16(4) included appointment by direct recruitment or promotion or transfer.

Conclusively, it was held that Article. 16(4) envisaged not only quantitative but also qualitative protection of the disadvantaged class of citizens. This question had to be resolved, the court said, not by reading Article. 16(4) alone,  but by a combined reading of Article. 16 (4) and 335.

Nevertheless, the court agreed that it would be appropriate for the State to extend compromises and relaxations in promotional matters to representatives of reserved groups without undermining the administration's efficacy.

In Ashok Kumar Gupta v. State of UP. JT 1997(4) SC 251, the Supreme Court clarified that, according to Articles 16(1) and 14, Article. 16(4A) provided a right to promotion of Dalits and Tribes as a fundamental right where they did not have adequate representation compatible with administrative efficiency. Accordingly, the Court ruled that the right to reserve was a fundamental right under Article. 16(1) and that a promotional reservation could not be deemed either unfairly or unconstitutionally.

 

In Jagdish Lai v. State of Haryana, AIR 1997 SC 2366 the Supreme Court ruled that if reserved candidates (Dalits or Tribes) had been promoted to a general candidate earlier, their seniority in the new framework would rank on the date of their admission to the promotion and this seniority would not and could not have the effect of being wiped out from their respective data after the promotion of the general candidate. The court observed that the protective discrimination provided for in Articles 16(4) and 16(4A) was the armor "to establish the equilibrium between equality in law and equality in results as a fact to the disadvantaged." The Court stated that the principle of reservation in promotion provided equality in results.

A five Judges Constitution Bench of the Supreme Court in Ajit Singh v. State of Punjab, JT 1999(7) SC 153 overruled the case of Ashok Kumar Gupta46 and Jagdish Lai’s case and held that they had not been correctly decided. The court clarified that the primary purpose of Article. 16(4) and Article. 16(4A) in certain posts was due representation of certain groups. The court held: “The Constitution has laid down in Article. 14 and Article. 16(1), the permissible limits of affirmative action by way of reservation under Article. 16(4) and 16(4A). While permitting reservations at, the same time, it has also placed certain limitations by way of Articles 14 and 16(1) so that there is no reserve discrimination.” The court ruled that both Articles 16(4) and 16(4A) neither grant any fundamental right nor impose any constitutional duties, but are purely in the nature of enabling clauses at the discretion of the State to consider making a reservation if the circumstances set out in those Articles so warrant. The court upheld the decision in the cases of U.O.I. v. Virpal Singh,  AIR 1996 SC 448 and Ajit Singh Juneja v. State of Punjab, AIR 1996 SC 1189, with their support.

The basic purpose of providing employment reservations is not merely to give jobs to some people in the committees (which are considered to be inferior) and to increase their representation in the services, but to elevate people socially and educationally in order to enable them to take their place in society. In the absence of legitimate protection, certain communities and Tribes would not be able to compete successfully with their more fortunate brothers and sisters in the matter of admissions to various study courses and the securing of public employment.

 

SUPREME COURT ON RESERVATION

In the present case, the controversy concerned reservations to SCs and STs in promotions for the post of assistant engineer (Civil) in the Department of Public Works of the Uttarakhand government.Initially the reservation was made under the Uttar Pradesh Public Services Act, 1994 (Reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes). Section 3(7) of this Act provided that, unless amended or repealed, the government orders providing for quotas in promotions that were in force at the time the Act was passed in 1994 will continue to operate.

The Act was made applicable to the new state after Uttarakhand was established in 2001, with a few modifications. Nevertheless, Section 3(7) was subsequently held by the Uttarakhand High Court as unconstitutional in 2011.

The State Government then formed a committee to collect quantifiable data on the backwardness of the reserved communities in Uttarakhand and the inadequacy of their representation in public posts, in order to satisfy the requirement of Article 16(4A).

In 2012, the then state government announced that all public service positions would be filled out for SCs and STs without reservation. We have abolished all government orders calling for such reservations. This was questioned again at the high court.

Then, in April last year, the Uttarakhand High Court struck down the state's 2012 decision. A review petition against this order was filed in the high court, which did acknowledge that Article 16 (4A) is an enabling provision.which stated that Article 16(4A) was an enabling clause.But it instructed the state government to collect quantifiable data about the inadequacy of the representation of SCs and STs in state services, and then to take a decision to make reservations in promotional . this opinion was challenged in the Supreme Court.

The apex court has now reiterated that Articles 16(4) and 16(4A) grant no fundamental rights to claim reservations in promotions. It is up to the state government to decide if reservations are required for appointment and promotions to public posts, it said.

“It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts. Similarly, the State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions,” it observed. 

It further ruled that since Articles 16(4) and 16(4A) do not confer fundamental right, courts cannot issue a direction to the state government to provide reservations. This explained that since the state government had decided not to make reservations, it did not have to collect quantifiable data at all.

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