From British era to modern India: The changing faces of the reservation policy

The same Bench is to start hearing for Muslim reservation in the erstwhile state of Andhra Pradesh.

By Syed Ghiyas Uddin  Published on  7 Nov 2022 10:15 AM GMT
From British era to modern India: The changing faces of the reservation policy

Hyderabad: The debate on reservation in India pre-dates the Constitution of India, and it is one of the various group rights guaranteed to its citizens based on their membership in various caste, class, religion, sex, linguistic, and region.

The Constitutional Grouping

Reservation is constitutionally justified based on the principle of the "equal protection of law" enshrined under Article 14 of the Constitution. In laymen's terms, it means "equals to be treated alike and unequal shall not be treated alike" under Article 46 of the Constitution.

The state is obliged to promote the educational and economic interests of the weaker sections of the people and particularly of the Schedule Caste and Schedule Tribe and shall protect them from social injustice and all forms of exploitation. However, Article 46 is a directive principle for the state policy and is hence non-justiciable in a court of law.

The members of these social groups are not exclusive of each other and this is one such inherent diversity of India. A citizen can have multiple group identities viz. a religious/caste/ linguistic group can be a socially and educationally backward class or vice-versa.

As stated, the Constitution of India does recognize the right of these groups, however, the task to define these groups is on the state. And here comes the Constitutional courts of India, time and again the High Courts and the Supreme Court of India under its jurisdiction of Judicial Review has examined the constitutionality of these classifications by the state amongst the citizens.

Reservation policy in India

In November 2021, the Maratha reservation granted under socially and educationally backward classes by the government of Maharashtra was outlawed by the Supreme Court.

Recently, the five-judge Constitution Bench led by the Chief Justice of India has reserved for judgment the constitutional challenge to the reservation for weaker sections (EWS) in the general category based solely on economic criteria under the 103rd Constitutional Amendment.

The same Bench is to start hearing for Muslim reservation in the erstwhile state of Andhra Pradesh.

These two constitutional questions are apparently different—the former adds a new criterion, i.e., economic weakness, and the latter takes religion as a factor for the identification of socially and educationally backwardness in a group to grant reservations. These two issues could bring tectonic shifts in the reservation policy of India if they survive the constitutional challenge.

Let's discuss in brief the policy of reservation:

In British India, reservation was granted on the basis of "being different." The policy of reservation was entangled with "representation."

Muslim political representation in British India was based on communal electorate (voters are divided based on their religious identities and can exclusively elect their leader). In 1931, the Sikh and depressed classes were granted communal award on the lines of communal electorate. However, the communal award was replaced with the terms of the Poona Pact of 1932. It diluted the communal electorate with joint electorate with the reservation of seats in favour of depressed classes (i.e. schedule caste) in provincial assemblies and central legislature of British India.

With the enforcement of the Constitution of India, reservation was considered an act of atonement for the generational oppression of the depressed classes.

Now, to seek reservation, one has to be recognised as backward and this backwardness shall be the outcome of social degradation.

As stated in the preceding para, the constitutional groupings are based on various identities, but for now, moot point is for religious minorities; socially, educationally and backward classes (Other Backward caste).

The other groups are Schedule Caste, Schedule Tribe, women, and children.

However, I restrict this article to the former two groups.

With the successive Supreme Court verdicts, the political argument of reservation as an act of atonement (compensatory justice) seeks constitutional legitimacy in N.M Thomas case. The Supreme Court held that Article 16 (4) 1 was not an exception to Article 16(1) 2 but a facet of it. As Gautama Bhatia writes, "The justification for this approach is that, historically, injustice has been meted out to certain group (women and children, Dalits and others), and thus it might be necessary to take group identity into account in order to achieve genuine equality."

Later, in Indra Sawhey v/s Union of India, popularly called the Mandal case, the Supreme Court upheld caste as a criterion for the identification of the backward class of citizens under article 16(4) of the Constitution of India. The majority judgment reasoned that caste, occupation, poverty, and social backwardness were closely intertwined and justified caste-based reservations, the reservation under Article 16 (4) was not in favour of a 'caste' but a backward class and in such a situation the bar of Article 16(2) 4 would not apply at all.

The Supreme Court recognised that multiple identities and reservations can be based on any shared identities but not solely on the identities prohibited fewer than 16(2) of the Constitution of India.

The act atonement was limited to the Schedule Caste reservation and so do the scholarship, Dr. BR Ambedkar argues. However, over time this was justified for reservations to the Other Backward Classes. And as of now, reservation in education and public employment is up to 49.5%; 15% to Schedule Caste; 7.5% to Schedule Tribe and 27% to Other Backward Classes. This cap of less than 50% was led by the Supreme Court in the Mandal case.

The 103rd amendment exceeds this cap, however, for brevity, we restrict ourselves to the economic weakness as an additional criterion for reservation. The Union of India, in its counter affidavit, buttress on various case laws and essentially on Article 46: an obligation on the state for the promotion of educational and economic interests of Schedule Caste, Schedule Tribe, and other weaker sections to justify the economic weakness to identity the weaker section of the General category. The challenge is finding a balance between the competing groupings with limited resources.

Role ahead for India—Universal Basic Income

It is high time that India finds a solution to the ever-increasing gap between the have and the have-nots and reservation is not the only scheme. There could be various alternative policy shifts.

One could be Universal Basic Income (UBI) as Guys Standing writes, "If society pretends to formal equality of status amidst gross real inequalities of power, status and property ownership, the ground is laid for active resentment. Perceptions of inadequacy, humiliation, envy, alienation and anomie generate unhealthy political impulses, fuelling support for the politicians who best promise to 'turn the clock back'. In that context, basic income—even the promise of moving in its direction—would offer a sensible prospect of reducing poverty, insecurity and inequality."

The demand for reservation by the so called forward caste, as in the case of Marathas, Jats, Pattidars, and Muslims, lies in their sense of 'insecurity' in an open globalising economy, confronted by unpredictable decisions affecting us taken elsewhere in the world over which we have no possible means of control. And public employment gives much-needed security.

This situation of forward caste/class can be summed up in the words of Confucius: Insecurity is worse than poverty.

References:

Gautama Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins Publishers India).

https://newsmeter.in/pdf_upload/ews-counter-affidavit-uoi-332266.pdf

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