10 Equality –II : Reservation

Dr. Anjali Bansal Goyal

1.  Introduction

The correct term used for reservation in the Indian Constitution is representation. Those who have benefited from reservation and enjoying the fruits of reservation must understand the true meaning of reservation. It is not given to anyone in his individual capacity. It is given to individual as a representative of the under privileged community. The beneficiaries are in turn expected to help their communities to come up. Reservation is a democratic principle to provide representation to the Castes hitherto remained unrepresented in the governance of the country. Those responsible for implementing the policy of reservation must undoubtedly understand that reservation is neither a policy matter, nor a political gimmick or matter of charity. It is a constitutional obligation.

2 Learning Outcome

2.1 Understanding the concept of reservation, its need and legitimacy.

2.2 Awareness about the amendments that have been brought about by the Parliament as a consequence of various judicial decisions.

3 Meaning and Need of Inclusive Social Order

In order to analyze this concept of reservation, the correct connotation of the term “inclusive social order” has to be understood. It is a system of governance through a kind of political arrangement in which members of different sections of society have opportunity to participate on equal footing. Such a social order serves two purposes i.e. firstly, Participatory social order is conducive to peaceful and sustainable development of society. The system of governance which includes certain factious or society creates tension and is inimical to development. Secondly, it augments pool of human right development.

Legitimacy of Policy of Reservation

The propriety of this policy of reservation can be understood at two levels i.e. conceptual level and functional level. At conceptual level, the creation of political document i.e. Constitution with the consent of all, by promoting fraternity and solidarity, which is a condition precedent. In preamble, Dr. Ambedkar as a political scientist has made political arrangement to cut across those barriers. The preamble to the Indian Constitution provides that there should be equality of status and opportunity. Moreover, every effort should be made to promote fraternity among all the people assuring dignity of the individual. At functional Level, the notion of fraternity is explored through strategy of reservation. Though the concept of reservation and equality are poles apart but this principle of reservation has been introduced in the Constitution along with the principle of equality.

5. Types of Reservation

Reservation is of two types i.e. vertical reservations and horizontal reservations. Social reservations in favour of Schedule Caste (SC), Schedule Tribe (ST) and Other Backward Class (OBC) under Article 16(4) are ‘vertical reservations’. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are ‘horizontal reservations’.1 For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be : “For SC : 30 posts, of which 9 posts are for women”.2 These two concepts have been discussed by the Supreme Court in Indra Sawhney v Union Of India3 and Rajesh Kumar Daria v Rajasthan Public Service Commission4.

6. Juxtaposition of Reservation vis-à-vis Equality

Equality is the prime principle and starting point of all other liberties. Our Constitution contains “Code of Equality” i.e. Article 14, 15 and 16. Article 14 is a generic term and can be expounded infinitely. Article 15 and Article 16 is restatement of Article 14 in Indian context. Article 15 is the most central to it.

The concept of equality and reservation are diagonally opposite to each other. Article 15 provides equality by clauses (1) and (2), but the same has been negated by subsequent clauses which permits making of special provisions in favour of some particular classes. Clause (1) of Article 15 directs the State not to discriminate against a citizen on grounds only of religion, race, caste, sex or place of birth or any of them. The prominence of the word “only” lies in the fact that Article 15 will come into play only in those cases where discrimination has been done solely on the ground of “religion”, “race”, “caste”, “sex” or “place of birth”. It signifies that other qualifications being equal, “religion”, “race”, “caste”, “sex” or “place of birth” cannot be a ground of preference. Clause (2) prohibits citizens as well as the State from making such discrimination with regard to access to shops, hostels etc. and all places of public entertainment, of public resort, wells, tanks, road etc. Clause (1) of Article 15 prohibits discrimination in any matter which is exclusively within the control of the State whereas clause (2) prohibits both the State and the private individual, who so ever is in the control of the above- mentioned places. Clause (2) is a particular application of the general principle against discrimination embodied in Clause (1). Clause (3) empowers the State to make special provisions for the protection of women and children. For example, Article 42 of the Constitution enjoins the State to make special provision for securing just and humane conditions of work and for maternity relief. A law made by the Parliament to implement this Directive like the Maternity Benefits Act, 1961 and the Factories Act, 1948 would fall within purview of Article 15 (3). Clause (4) which was added by the Constitution (1st Amendment) Act, 1951, enables the State to make special provisions for the protection of the interests of the Backward Classes of citizens. This amendment was made as a sequel to the decision of the Supreme Court in State of Madras v. Champakam Dorairajan5. In this case, the Madras Government issued a communal G.O., providing for reservation of seats in the State Medical and Engineering colleges for different communities in proportion of students of each community. The Supreme Court held the order to be violative of Article 15 (1) as seats were reserved on ground of religion, race and caste. In order to nullify the effect of this judgement, Clause (4) was added to Article 15.

In the same manner, Article 16(1) contains another facet of equality. It secures equality of opportunity in matters relating to public employment to every citizen. But it does not prevent the State from prescribing the requisite qualifications and the selection procedure for recruitment or appointment. Such qualifications may include mental excellence, physical fitness, sense of discipline and moral integrity etc. These should not be arbitrary. It must be based on reasonable ground having nexus with the efficient performance of the duties and obligations attached to that particular office or post. Clause (2) of Article 16 further strengthens the guarantee contained in clause (1). Clause (2) prohibits the state from making discrimination against any citizen in respect of any employment or office under the State only on grounds of religion, race, caste, sex, descent, and place of birth, residence or any of them. There would be no contravention of this clause where discrimination is based on grounds other than those mentioned in Clause (2) or partly on ground mentioned in this clause and partly on some other considerations. For example, if discrimination is made on the ground of backwardness, Clause (2) would not be applicable. The subsequent clauses negated this concept of equality by permitting making of special provisions in special circumstances and for specific classes. Clause (3) empowers the parliament to make any law prescribing any requirement as to residence within that state or union territory. Clause (4) permits the state to make provision for the reservation of appointments or posts in favour of any backward class of citizens who are not adequately represented in the services under the state. It is only an enabling provision which has been enacted to secure egalitarian equality. Clause (5) provides that a law may prescribe that the incumbent of an office, in connection with the affairs of any religious or denominational institution, or any member of governing body thereof, shall be a person professing a particular religion or belonging to a particular denomination. Thus, there was conflict between these two set of provisions. As this conflict was not envisaged by the framers of the Constitution, the Judiciary has tried to reconcile both of them in the following manner.

7. Basis for Determining a Class as Backward

The mechanism of reservation can be used for the advancement of socially and educationally backward classes of citizens. The judiciary has discussed various factors which are to be considered for determining the social and educational backwardness.

8. Different Horizons of the Concept of Reservation

The conflict between Parliament and Judiciary over the matter of reservation has resulted in pronouncements of landmark decisions by the courts and various amendments in the constitution by the Parliament. The principles laid down in various judgments and the consequent amendments are as follows:

8. Conclusion

In the end, it could be said that the Founding Fathers of the Constitution were aware of the ripples of inequality present in society, decried the notion of caste and ensured that the constitutional framework contained adequate safeguards that would ensure the upliftment of the socially and educationally backward classes of citizens, thus creating a society of equals. It is the duty of the State to promote positive measures to remove barriers of inequality and enable diverse communities to enjoy the freedoms and share the benefits guaranteed by the Constitution. In the context of education, any measure that promotes the sharing of knowledge, information and ideas and encourages and improves learning, among India‟s vastly diverse classes deserves encouragement. But, any such special measure should satisfy the parameters of Article 14 and not in any way abdicate the principle of efficiency.

Web links

• http://www.iipa.org.in/upload/theme%20paper-2010.pdf
• http://www.edgroup.com.au/wp-content/uploads/2014/03/ESP-IG-Policy-Brief-Final.pdf
• http://imedaindia.ning.com/profiles/blogs/history-of-the-reservations-system
• http://www.unipune.ac.in/snc/cssh/ipq/english/IPQ/16-20%20volumes/17%2002/PDF/17-2-1.pdf
• http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1054&context=aalj
• http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/4421/15/15_chapter%206.pdf