Reservation is not a fundamental right

“Right to the reservation is not a fundamental right. That’s the law today,” Justice Rao said. The Supreme Court bench headed by Justice L Nageswara Rao said nobody can claim the right to the reservation as a fundamental right and ruled that refusing to provide reservation benefits cannot be treated as a violation of any constitutional right on Thursday while rejecting pleas challenging the Centre’s decision to not grant 50% reservation to OBCs in Tamil Nadu medical colleges. The court has refused to entertain a battery of petitions filed by various political parties, "DMK, Vaiko, Anbumani Ramadoss, CPI (M), Tamil Nadu Congress Committee and CPI" against the Centre's decision.

The Apex Court while replying to the DMK petitioner also marked, "Whose fundamental rights are being violated? Article 32 is available only for violation of a fundamental right. We assume you are all interested in fundamental rights of the citizens of Tamil Nadu". However, this is not the first time SC has commented on the 'positive discrimination' or on the 'affirmative action'. The Indian judiciary has made major judgments related to reservations.

In the case of State of Madras v. Champakam Dorairajan AIR 1951 SC 226 the Court ruled that caste-based reservations as per Communal Award violate Article 15(1) of the constitution. This also led to the introduction of the First Amendment of the constitution, which invalidated the judgment.

Before moving to other judgements let me make it clear about the reservation and the purpose of this reservation system in India. So as per the Constitution of India, it's two sole purposes are:

1. Advancement of Scheduled Castes (SC) and the Scheduled Tribes (ST) OR any socially and educationally backward classes of citizens (Eg: OBC) OR economically weaker sections (EWS) – Article 15 (4), Article 15 (5), and Article 15 (6)

2. Adequate representation of any backward class of citizens OR economically weaker sections (EWS) in the services under the State. – Article 16 (4) and Article 16 (6).

Now, before 2019, the reservation was provided mainly on the basis of social and educational backwardness (caste) in:

  1. Government Educational Institutions (like IITs, IIMs etc) – as per Article 15 – (4), (5), and (6)

  2. Government Jobs (like IAS, IPS etc) – as per Article 16 – (4) and (6)

  3. Legislatures (Parliament, and State Legislature) – as per Article 334

However, after the 103rd constitutional amendment in 2019, economic backwardness is also considered.

As we all know that the caste system prevailed in India had alienated many “lower castes” from the mainstream – hindering their development. To a great extent, which can still be felt. Thus, reservation as a policy is pursued by the State to correct the historical injustice done to certain castes by the so-called “upper castes”.

Original Constitution of India has provided reservation only for quota in legislatures – that too only for 10 years until 1960 (article 334). Subsequent amendments to the constitution extended the period of reservation for quota in legislatures. It’s the duty of the government to provide equality of status and opportunity in India.

Reservation is one of the tools against social oppression and injustice against certain classes. Otherwise known as affirmative action, reservation helps in uplifting backward classes. However, reservation is just one of the methods for social upliftment. There are many other methods like providing scholarships, funds, coachings, and other welfare schemes. The way the reservation is implemented and executed in India is largely governed by vote-bank politics.

In Indra Sawhney vs Union Of India, 1992, the Supreme Court of India capped caste-based reservation, ruling that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”
“Since this Court has consistently held that the reservation under Articles 15(4) and 16(4) should not exceed 50% and the States and the Union have by and large accepted this as correct it should be held as constitutional prohibition and any reservation beyond 50% would liable to be struck down.”

Indian Constitution allowed reservation only for socially and educationally backward classes. However, it became a caste-based reservation instead of class-based reservation. Article 335 of the Indian Constitution states that "The claims of the member of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently, with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Provided that nothing in this article shall prevent in the making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State."

Initially, the reservation was intended only for SC/ST communities – that too for a period of 10 years (1951-1961). However, it got extended ever since. After the implementation of the Mandal Commission report in 1990, the scope of the reservation was widened to include Other Backward Communities (OBCs). The benefits of the reservation were successively enjoyed only by a few communities (or families), excluding the truly deserving ones. Even 70 years after independence, the demand for reservation has only increased.

Now, with the introduction of economic criteria for reservation, in addition to the caste-criteria which already existed, things have become more complicated. As "the reservation is not a poverty alleviation scheme".

Supreme Court had also ruled that economic status cannot be the sole criterion for reservation.

Many states had tried to implement Economic Reservation, however, they were subsequently quashed by Courts.

Introducing EWS bill in 2019, Union Social Justice and Empowerment Minister Thaawarchand Gehlot said the similar state laws for EWS quota were quashed by Courts because there was no provision for economic reservation in the Constitution before. Now, the Law will not be struck down by the Supreme Court if challenged as it has been brought by making required provisions in the Constitution. It's time to introspect and ask questions like, is the current system of unequal treatment perfect? Is it creating more injustice? Is it the only way out in a welfare-nation? Reservation based entirely on economic criteria is not an all-in-one solution, though family income can be one of the parameters. Also, its time to fix a time period for the reservation system – rather than extending it to eternity. Reforms in the reservation system of India is the need of the hour. However, as the subject of reservation revolves around a lot of votes, parties are reluctant to disrupt the existing system.

Official Writer - Sneha Kumari

#reservation #india #Reservationisnotafundamentalright

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