SC/ST reservations: A Shake-Up Call

By MG Devasahayam

The Supreme Court of India has set the cat among the pigeons by ruling that quotas and reservations for promotions for government jobs are not fundamental rights. In a verdict delivered on appeals on reservations for the SC/ST community members in promotions to Assistant Engineer (Civil) posts in the Public Works Department of the Uttarakhand government, the Court decreed: “There is no doubt the state government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing state governments to provide reservations.”

This judgment has justifiably caused some political alarm. Over a period of time, a series of Constitution amendments and judgments have created a legal framework for reservations in public employment, subject to the fulfilment of certain constitutional requirements. Reservation has also become political capital and is often used as a tool by politicians to sway votes in their favour. Using the rhetoric of reservation, politicians have for long exploited the citizens of the country and in the process reduced a significant percentage of them to mendicants.

All these have solidified into an entitlement for the backward classes, including the SCs and STs. This judgment, however, is a reminder that the “reservation” programmes allowed in the Constitution flow from “enabling provisions”, and are not rights as such.

This legal position is not new. Major judgments—including from Constitution benches—note that Article 16(4), on reservation in posts, is enabling in nature. In other words, the state is not bound to provide reservations, but if it does so, it must be in favour of sections that are backward and inadequately represented in the services based on quantifiable data.

For this purpose, data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services becomes imperative.

The enormity and criticality of “reservation” as a subject in India can be gauged from this: reservation for SCs/STs and OBCs accounts for 49.5 percent of the jobs in central government service (15, 7.5 and 27 percent, respectively). The addition of another 10 percent recently has taken the reservation pie to 59.5 percent. It is therefore natural that there are strong proponents and opponents for this deemed “Affirmative Action” (AA) considered as the hallmark of social justice. This is what the proponents have to say:

1. Preamble to the Constitution aims to secure Justice—Social, Economic and Political—among all its citizens. But so long as the social and economic inequalities continue, this objective cannot be secured. The SCs, STs and Other Backward Castes are victims of such inequalities. So, it is necessary to provide them special care and protection through reservations until they come forward, on a par with others.
2. The weaker sections of society, like STs, SCs and Dalits, have been the victims of exploitation for many centuries. Their backwardness, underdevelopment and deprivation can be removed through the compensatory provisions of reservation.
3. Empowerment of the weaker sections of society will be possible through reservation. They can play their role in the political process of the system with confidence. In India, reservation has become a means of empowerment.
4. Weak persons always deserve some extra care. Similarly, the weaker sections of Indian society require some extra support, which is being provided in the form of reservations in jobs and seats in legislatures.
5. The Constitution of India gives directives to the states to take special care for protecting the interests of the weaker sections of society. The best way of protecting their interests is to provide them some facilities by way of reservations.

Opponents counter with the following arguments:

1. The policy of reservation was designed as an ad hoc measure for 10 years. But it is continuing and getting extension after the end of every 10 years. It is creating some sort of frustration among high caste people as they are deprived of opportunities either to get a job or to take admission in educational institutions due to the reservation policy.
2. The reservation policy has created a “new class of vested interests” in society. They have permanently benefitted from the reservation policy. Thus, the policy has created the psychology of dependency among them.
3. The policy of reservation is contrary to the principle of equality. Equality presupposes equal treatment to all and equal protection of all people. But special privileges and extra protection to a certain class of people is against the policy of equality. It violates the very spirit of democracy.
4. The policy of reservation of jobs is violating the efficiency and merit system of recruitment. While the meritorious and talented persons are deprived of their due share of appointment, the authorities are forced to make compromises with quality. While reservation in jobs itself severely compromises merit, extending it to promotions would destroy whatever merit is left.
5. The policy of reservation has given rise to the politics of casteism in the Indian political system. The over-consciousness of caste identity is obstructing the process of national integration. Moreover, castes have been used as instruments for maintaining the vote-banks of different political parties. They are competing among themselves for enhancing the percentage of caste-based reservation. It has already reached 69 percent in Tamil Nadu.

“Reservation” as practised in India falls into three categories: (a) Posts and services of the State and other entities which come under the rubric of “State” defined in Article 12; (b) In admission to seats in educational institutions; and, (c) In elections to the Lok Sabha, State Assemblies, Rural and Urban Local Bodies.

Article 334 was titled in the Constitution, on November 26, 1949, as “Reservation of seats and special representation to cease after twenty years.” Basically, when the Constitution of India was written, the goal was set for 20 years to bring reform among SCs/STs.

However, lack of accountability among politicians, absence of proper implementation of government policies and vote-bank politics have resulted in repeated extension of the time-line. Despite this, the situation of the SCs/STs does not seem to be that favourable even after extended periods of reservation.

Things are only getting worse with the BJP government reserving 10 percent posts for the “Economically Weaker Sections”. At the income limit of `8 lakh per annum, this reservation is meant to pamper comparatively well-off forward communities.

All this chaos and chicanery in the name of social justice is because the precept and practice of “reservation” is a straitjacketed and blinkered version of AA which is born out of the doctrine of Compensatory Discrimination—a welfare state giving preference to a group or groups of people with a stated goal of countering and compensating the past or ongoing atrocities, excesses, injustice, or discrimination of any sort against them.

Among the countries where AA is in vogue, South Africa is the most relevant, because like India, it has a longstanding history of social discrimination. Combating racial inequalities is the main aim of AA in South Africa. Foll – owing the attainment of democracy, the government led by the African National Congress chose to implement AA legislation to correct previous inequalities and this policy came to be known as “employment equity”.

The Reconstruction and Development Programmes thus began to redress past imbalances.

South Africa adopted a holistic approach to AA to achieve social justice. Much of the liberation struggle in SA was focused on ending the discrimination against and exclusion of the black majority from many spheres of life, including the economy.

The new South African Constitution (1996) made provisions for policy and legislation to be formulated to allow efforts to redress the inequalities of the past. Even before the establishment of any formal AA or empowerment strategies, some voluntary redress initiatives were undertaken in the private sector. These fragmented efforts did not satisfy the expectations of a majority population denied access to many aspects of the South African economy for years.

Institutional and legislative settings for AA policies in SA are: a. Employment Equity Act of 1998: This aims for equality by imposing the duty on the State to (i) eliminate unfair discrimination in current employment, and (ii) take positive or affirmative measures to attract, develop and retain individuals from previously disadvantaged groups. b. Broad-based Black Economic Empowerment Act of 2003 for “economic empowerment of all black people, including women, workers, youth, people with disabilities and people living in rural areas”. c. Codes of Good Practice by the Department of Trade and Industry in February 2007 notified under Economic Empowerment Act.

As against this holistic approach of AA, India has been indulging in patchwork reservation policy and practices for jobs in the government sector and admission in educational institutions. This mess-up has made India perhaps the only country in the world where communities en bloc are struggling to continue occupying the backward status to get a share of the shrinking government cake! This, seven decades after independence and in a country aspiring to be an economic superpower!

This Supreme Court judgment should come as a shake-up call. Instead of bemoaning it and allowing reservation to wither away, the political class should get together, study the whole situation and enact comprehensive legislation to usher in socio-economic AA to achieve participatory development with equity and dignity.

– The writer is a former Army & IAS officer