Reservation in India

Syed Qasim Ali Blog

In India caste based reservation is not an infant. It is an ages old principle which is justified by Constitution of India and the constitutional courts. A caste based reservation was originally thought by William hunter and Jyotiba Phule in 1882. The reservation system that exists today was introduced in 1933 when British Prime Minister Ramsay Macdonald presented the ‘Communal Award’.

For both Article 15(4) and Article 16(4) caste was chosen as criteria for reservations. A backward caste is considered to be both socially and educationally backward and it was found to be readymade criteria existing in the society. In article 15(4) the criteria is social and educational backwardness and in article 16(4) the criteria is general backwardness coupled with inadequate representation in government jobs. Caste was found to be suited to both these requirements. However, in case of INDRA SAWHNEY & OTHERS VERSUS UNION OF INDIA some economic criteria was also included but not as solely and exclusively, such economic criteria must be due to social backwardness. Another issue decided was reservation shall not exceed 50%. However, in only extra ordinary reasons this percentage may be exceeded and every excess of over 50% will have to be justified on valid grounds and same has to be specifically made out.

Concept of reservation embodied in various articles of the Constitution of India is the outcome of the core principles which is set out in the preamble of the Constitution “……EQUALITY of status and of opportunity…..”. One parameter can be drawn out from this principle is that those people shall be provided with equality of status who had been looked down upon by the society for number of years and along with equality of status they shall also be provided with opportunities that because of being looked down upon they had not been provided with. Therefore it is the duty of the state as well as private individuals to remove the menace of looking down upon in a larger societal interest. Even if article 15 and 16 would not have been there, then also article 14 is sufficient to meet out the larger goal of society towards the social uplifment.

Recently Constitutional 103rd amendment Act has caused a din among public spirited persons. This act has amended articles 15 and 16, thereby providing 10% of reservation to maximum extent in educational institutions and government jobs. This 10% reservation is in addition to existing reservation percentage. Another peculiarity about this amendment act is that it is only for persons who are not taking any reservation benefits, and it is purely on economic criteria. Presently the reservation percentage is Schedule caste-15%, Schedule tribe-7.5%, Other Backward Classes-27%. Thus, total reservation is 49.5%. Addition of 10% to existing reservation would make it more than 50%, thereby violating the 9 judges bench judgment of INDRA SAWHNEY & OTHERS VERSUS UNION OF INDIA. Except economic criteria there is no other criterion for aforesaid reservation which is also against the apex court’s ratio decidendi. The economic criteria to avail such reservation are:

i. Family income should be less than Rs. 8 Lakhs per annum.
ii. Farm land should be less than 5 acres.
iii. Residential house should be less than 1000sqft.
iv. Residential plot should be less than 100 yards in notified municipality.

But the aforesaid criteria has not been set out in the amendment act, rather the economic criteria is left at the prerogative of the state which shall decide from time to time on the basis of family income and other economic disadvantage.

The fate of 103rd constitutional amendment act is still not clear and depends upon the Supreme Court in which a PIL has been filed by youth for equality (an NGO), which has contested that 103rd amendment act violates the basic structure of Constitution of India. Now we have to see whether the state will be able to justify the reservation of more than 50% and also how the only economic criteria will be over and above the precedent which was declared by the Supreme Court.