The 124th Constitution amendment, which has now become a law, is aimed at giving 10% reservation in education and government jobs for people belonging to economically weaker sections of the general category. The Amendment Bill was introduced by the government amid criticism by the opposition, which termed the move as a pre-election gimmick. However, with elections just months away, no major political party dared to oppose the bill directly. It may be noted here that there has been a long-standing demand for adopting the affirmative action in favour of the economically weaker sections of the society regardless of their caste, creed and religion. In fact, some people have been demanding that all types of reservations, except on the economic ground, should be done away with to promote the meritocracy and take the country to new heights.
India as on today has already job and education quotas for Schedule Castes, Schedule Tribes to the tune of 15% and 7.5% respectively and later 27% reservations were provided to Other Backwards Classes (OBCs) in the wake of the report of the Mandal Commission report. Former Prime Minister PV Narasimha Rao had also attempted reservation for the poor belonging to the upper castes, but that Bill could not stand judicial scrutiny because a cap of 49.5 % has been fixed by the Supreme Court in the famous Indra Sawhney vs Union of India ‘s case.
As per the Constitution, so far, the State can come up with a special provision for educationally and socially backward people as it has been well defined in Article 15 and 16. This Constitution Amendment has already been challenged in the Supreme Court and it has to be seen whether it will stand or not the judicial scrutiny.
All this is laid out in Article 368, which also lays down conditions when the Constitutional Amendment needs to be passed by the majority of State Assemblies, but these conditions apply only when an amendment involves a federal structure or is of common interest to both the Union and the States. During the Lok Sabha debate on the amendment Bill, K.V Thomas of the Congress Party had stated that the ‘Bill has to be passed by a two-thirds majority, and then, 50% of the states have to approve it. But the Finance Minister Arun Jaitley intervened and said, to amend Part 3 of Article 368 of the Constitution (which describes the Power of Parliament to amend the Constitution and procedure thereof) concerns the fundamental rights and, therefore. there is no need to go to state legislatures. Quintessentially, this is not the matter which will have to go to the state assemblies for ratification. How strange it is that the parties like the DMK, AIADMK, TRS and TDP, which have been brazenly defying the 49.5% cap on the reservation, are now talking about the constitutional propriety when it to giving reservation to the economically backwards is concerned. As a matter of fact, there are already many states like Tamilnadu, Karnataka and Maharashtra etc; which have been providing more reservations to the STs, SCs and OBCs than what has been fixed the outer limit by the Supreme Court.
The validity of reservation on the basis of economic backwardness in the absence of social backwardness will depend on how many of the yardsticks of backwardness as laid down in the Indra Sawhney case for OBC reservation are satisfied in the amendment. The ‘Mandal Commission Report’ and the controversy that followed it, is deeply etched in the memory of every Indian. By upholding the Mandal Commission Report, the Apex Court judgment in the case of Indra Sawhney v. Union of India established a central role for itself in every debate on the sensitive issue of reservations in India.
One of the avowed objectives of the Indian Constitution is the creation of an egalitarian society, including, and especially, by way of the eradication of caste and the caste system. In support of this objective, several successive governments have devised various affirmative action policies to eradicate caste and support the social mobility of backward classes. These measures typically include reserving seats in representative and educational institutions or public employment for members of certain classes that have been traditionally and historically marginalised. However, over time, these measures have become a tool for populism and to appease certain communities. Therefore, every time such a measure is introduced, it has resulted in dividing public opinion and caused widespread controversy. On some occasions, this divide has escalated into public demonstrations and even riots, for or against reservation.
When these hotly contested measures have come up for adjudication, the judiciary’s role has not been easy; it has to account for social realities, while simultaneously grounding its decision within the sacred framework of the Constitution. One recurrent controversy that has arisen on multiple occasions before the Apex Court is the criteria for determining backwardness in order to qualify for reservation. There have been several cases that directly deal with this question and the Indra Sawhney v. Union of India is the most significant one.
The weaker sections, as mentioned in Article 46 are a genus of which the backward class of citizens mentioned in Article 16(4) constitute a species. Thus, only backward classes, and not all the weaker sections, are entitled to reservation. Caste and class are not synonymous. The class is not antithetical to caste, caste is an enclosed class. Dr. Ambedkar, at the time of the first amendment, which inserted Clause 4 in Article 15, told Parliament that backward classes are nothing else but a collection of castes. He said that castes are practically the social class. Thus, economic backwardness must be the result of social backwardness.
The court has all along said that that open competition is the norm and equality of opportunity is the norm. In Indra Sawhney case, the 11-judge bench underlined the constitutional provisions, which provided that the government can give reservation for the economically and socially backwards class people whose population is not represented. And it also added that reservation should be limited to deserving candidates of the aforesaid class and well-off people of the classes i.e. creamy layer should be exempted from getting the reservation.
Many people view that the reservation is associated only with castes. It is actually associated with opportunities but unfortunately, in our society ‘opportunities are associated with castes’. Reservation system can be discontinued completely for all sections of the Indian society once we reach ‘social equality’. There is no gainsaying that the benefits of reservations have not percolated to the really backward castes. It has been cornered by the dominant castes like Yadavas, Kurmis, Reddys, Kapus,
Kammas and Kurbas etc; which have been very assertive in politics also. They also have got the large chunk in the power-sharing. It is very strange that the leaders of these castes have been the vociferous opponents of even the women’s reservation bill. This speaks of their duplicity as that they do not want the holistic development of the society. This also betrays their feudal mentality, which they want to get perpetuated instead of getting rid of this malaise.
Needless to say, that reservation is no solution because no society can stand strengthened on the crutches of reservation. Therefore, the need of the hour is to promote the spirit of entrepreneurship among men and women so that they can get themselves gainfully employed and also help others in getting employment. The duplicity of the political parties has got no explanation because when they are out of power, they will support the cause of reservation for the upper caste but when any other political party talks about, they will come down with hammer and tongs and will accuse with violation of the constitutional propriety.
It is also to be noted that the reservation was contemplated only among Hindus and not in any other communities because the disease of the caste system is theoretically found only among Hindus and not in any other communities or religions.
The Supreme Court in Indra Sawhney case observed that the idiotic practice in Hindu society is that the moment a child comes in the womb of mother, even before its umbilical cord is cut off, the innocent child is branded, stigmatised and put in a separate slot according to the caste of its parents despite the fact that the birth of the child in the particular slot is not by choice but by chance. The concept of inequality is not known in the kingdom of God (if one believes in the existence of God at all), who creates all beings equally, but some people have created the artificial inequality in the name of casteism with a selfish motive and vested interest. The caste is undoubtedly devilish, and it must be obliterated but one cannot expect it from the present breed of the politicians, who promote the caste system because that helps them in garnering the votes. The fact is that if there are enough jobs, there will be no tension on the Reservation count.