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Friday, July 20, 2018

CASTE BASED RESERVATION IN POST-INDEPENDENT INDIA: A CRITICAL ANALYSIS

RAJ KRISHNA AND SNEHIL
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA 
[GUEST POST #1]
[Pexels.com]

 1. INTRODUCTION 
 Reservation in general term implies to an act of withholding, reserving or keeping back some of the seats for the upliftment in the status and standard of living of socially and educationally backward sections of the society. Reservation in Indian context can be defined as a form of affirmative action taken by the government whereby a percentage of seats are reserved in the public sector units, union and state civil services, union and state government departments and in all public and private educational institutions, except in the religious/ linguistic minority edu­cational institutions, for the socially and educationally backward communities and the Scheduled Castes and Tribes who are inadequately represented in these services and institutions.
During the time of elections we often hear political parties making statements in favour of Caste Based Reservation for strengthening their vote bank. Reservation plays an important role in deciding the results of Elections. Thus, it can be said that Reservation Policy holds a very prominent place in the contemporary Indian society. But, before we make any opinion or comment upon the existing reservation system we need to know about the reason behind its implementation. 

2. CONSTITUTIONAL PROVISIONS FOR RESERVATION IN INDIA
Due to the existence of caste system in Indian society, SCs and STs were oppressed and denied equal opportunity in Indian society. As a result they were not only in a miserable state, but, were also under-represented in nation-building activities. Therefore, in order to improve their conditions certain provisions were incorporated in the Constitution for their upliftment and betterment in society.1 Article 15 of the Constitution empowers the state to make provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.2 Article 15 enlarges the scope of Article 14 which embodies the principle of equality before law. It prohibits certain classifications even though they may be justified under Article 14 and expressly asks for making certain classifications which may be impliedly be within the reach of Article 14.3 Further Article 16(4) states that nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.4  

3. THE MANDAL COMMISSION CASE
There have been many a cases in the courts of India because of the reservation policy. However the most important of all is the Mandal Commission Case5 [Indira Sawhney Case] wherein the Supreme Court has taken cognizance of many complexes but very momentous questions having a bearing on the future welfare and stability of the Indian Society. The 9 Judge Constitution Bench of the Supreme Court by 6:3 majority held that the decision of the Union Government on the recommendation of Mandal Commission to reserve 27% Government jobs for backward classes provided socially advanced persons was constitutionally valid. However, Creamy Layer among them were eliminated from availing the benefits of reservation. Further the court also held that the reservation of seats shall only confine to initial appointments and not to promotions, and the total reservations shall not exceed 50 percent. However, after the landmark Mandal Commission case, Article 16(4-A) (through 77th Amendment) and 16(4-B) (through 81st Amendment) were added into the Constitution. According to clause 4-A, nothing in this Article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes of posts in the service of state in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State, are not adequately represented in the services under the State.” The same has been considered valid by SC in the case of M. Nagaraj v. Union of India6, the judgment of which is now under a reconsideration in the Supreme Court.7  

 4. WAY AHEAD
The reservation system of India is one of the examples where the solution to a problem has been a bigger concern than the main problem itself i.e. the caste system. The solution as provided by our constitution makers states that a certain number of seats or percentage would be reserved for the underprivileged section, in all jobs and government positions. According to Dr B. R Ambedkar, the reservation system was merely temporary as he thought that over the period of time, Indians would ultimately go beyond the boundaries set up by the caste system through education and rationality. Although his plan mostly worked out what he failed to think was the greed and vote bank politics on the part of the politicians and their parties in the coming future. The problem became severe when it got extended over and over again when it was supposed to be eliminated after a few years of its initiation. Moreover, the percentage of seats reserved for the backward section got increased from 7.5%-15% to almost 50% now, is an evident proof of political agendas hidden behind it and vote bank politics. It is only creating a division on the basis of caste and is promoting it even further. Thus, it’s high time that the reservation system on the basis of caste got done away with and is replaced with economic criteria. This will even help the backward castes who don’t have the resources, will now be able to avail of the benefits. The reservation policy should be such that it is able to filter and provide justice to all the economically deprived people out there.

THE END


1 https://www.legalbites.in/law-notes-constitution-reservation/ visited on 12th July, 2018, 10:00 p.m.
2 Constitution of India, Art. 15.
3 Supra note 1.
4 Constitution of India, Art. 16(4).
5 Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217
6 M. Nagaraj v. Union of India, Writ Petition (civil) 61 of 2002
7 http://www.livelaw.in/m-nagaraj-judgment-reservations-in-promotion-reconsidered-sc-refers-question-constitution-bench-read-order/ visited on 10th July, 2018, 11:30 p.m.

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