Whether 100 % Reservation Or No Reservation

By Manoj K. Srivastwa

Of late, the question of law, as accentuated by the Hon’ble the Supreme Court in Jaishree (1) that whether there should be reservation exceeding 50%, as contemplated in Indra Sawhney (2) case, splatters again a fierce debate on reservation. The supporters and opponents marshals their respective competing raison’ detre at razor’s edge. Central Government and governments of all states across party lines tune in accord that reservation must be continued exceeding 50%. Nikita Khrushchev said “Politicians are the same all over. They promise to build a bridge even where there is no river” (3). Justice Chinnappa Reddy observed in K.C. Vasant Kumar “Nowhere else in the World is there a Competition to assert Backwardness and to claim we are more backward than you”(4). Aristotle defines Political Justice as “that kind of Justice which exists in order that people who share a common way of life are able to establish whatever state of affairs is necessary to enable them all to live as free and equal members” (5). Whether Reservation exceeding 50 % would be justified and constitutional or whether there must not be any reservation at all?

History can not be rechristened

The first demand for reservation led to Hunter Commission,1882. State of  Kolhapur was the first to introduce50% reservation. British came with first reservation by the Indian Councils Act 1909. The Communal  Award, 1933,  introduced separate representations for the Muslims, Sikhs, Christians, Anglo-Indians, Europeans, and Dalit. Poona Pact,1932 was signed for a single Hindu electorate but with seats reserved  for Dalits. The term “Scheduled Caste” was first used in the Government of India Act, 1935. Ultimately, Divide & Rule policy of British led to partition of India.

The Draft Constitution in the Constituent Assembly

Muslim, Christian, Sikh, Parsees agreed to abandon reservation as provided under Article 294(1) of the Draft Constitution and Jaspat Roy Kapoor, member of the Constituent Assembly congratulated “I would like to take this opportunity to congratulate them all for this wise and bold decision that they have taken in the larger interest of the country. I would particularly like to congratulate my Muslim brethren because for so many years past they have had separate electorates and separate representation.They forget to think themselves as a separate community and that their interest is the same as the interest of the major community or rather that the interest of every community and every citizen of the country lies in the interest of the country as a whole(6).” Mahavir Tyagi lamented the reservation “Those  who are not elected on the basis of service to the country, are returned on the strength of their relations. This, of course, is very unfortunate for this country”(7). Khandekar explained grey-lines of reservation “There are differences amongst our sub-castes. It has got a scope for ousting the Harijans who are in majority in a province.(8) On Definition of Backward Classes K. M. Munshi said “a definition of backward classes, which includes  not  only Scheduled Castes and Scheduled Tribes but also other backward classes who are economically, educationally and socially backward(9). R. K. Sidhva, said that  reservation  was  about individual “If there is any class  which  feels  that  their  interests have not been justly represented in the services, they should go to the proper authorities and find the remedy.(10) Education was panacea to remove all backwardness,  felt S. Nagappa “Education is the key of all-round development. Unless and until they are educated, you may not be in a position to bring them to the level of the other advanced people.”(11)

The Constitution on 26th Jan,1950

Article 15 &16 (12) conferred fundamental right to equality of opportunity sans any reference to reservation for SC & ST or OBC. Right to ‘Reservation in appointment or in promotion was never mentioned in any of the articles under part III of the Constitution of India & ipso facto & de jure the Constitution of India did not confer the fundamental right to reservation. Article 46(13) referring only “weaker section” of SC & ST was placed in the Directive Principle. Gadbois JR comments “These directive principles much like an election manifesto”.(14) Article 335 was only for consideration. Article 330 was inserted by Poona Pact. Article 336-337 for Anglo Indian was the cost for freedom. The Constituent Assembly did not want to repeat the same mistake as was done during the British time which granted  separate electorate by Communal Award.

A cliffhanger of Demagogue

Despite no reference to any caste in part III, Article 15(4)- special provision for the advancement of Socially and educationally backward classes and SC & ST was added(15) and Art 15(5)-(admission to educational institution) was added(16). Similarly, Art 16(4) did not refer SC or ST but Art 16 (4A)- for reservation in promotion for SC & ST was added(17)

A fortiori : Excellence & Fraternity for camaraderie inter se

The Constitution at its adoption commanded citizen to observe its positive duty towards reservation less society as enshrined under  Article 51A(J) which is read as “it shall be duty of every Citizen of India to strive towards EXCELLENCE in all sphere of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.”(18) The PREAMBLE of the Constitution casts a duty on State too “to promote among them all FRATERNITY.(19) But how can a citizen blossom to its full excellence when a citizen is dipped in bud by reverse discrimination of Reservation and unfair play by mighty State. S. R. Bommai emphasised “from the point of  view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated  equally(20). Dr. Ambedkar defines Fraternity as “Fraternity means a sense of common brotherhood of all Indians-being one people” “Without fraternity, equality and liberty will be no deeper than coats of paint”(21). Our nation has to compete with world inter alia China and  United  States  in  all  spheres.  MR  Ballaji  observes“The demand for technicians, scientist, doctors, economists, doctors, engineers and experts for further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by wholesale reservation.”(22) P M  Bakshi comments “Article  14 would override the special provision under Art 15(4) (23). HM Seervai observes “neither castes by itself nor poverty by itself constituted backwardness”(24). Nehru retorts “The only real way to help a backward group is to give opportunities for a good education, but if we go in for reservations on communal and caste basis we swamp the bright and able people.(25) Professor Andre argues “It stifles individual initiative without creating equality between individuals”(26).Ronald Dworkin said “Law’s Empire is defined by attitude and not territory or power of process”.(27) Palkhivala stuns “forward and backward open up a new vistas for internecine conflicts and fissiparous forces and make backwardness a vested interest”.(28) Lal Narain Sinha, screams that “those who are outside the category of backwards are to be denied the opportunity of appointment pro tanto”.(29). John Rawls advocates that “a society is a cooperative venture for mutual advantage  and social cooperation makes possible a better life. (30).

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The Author is an Advocate on Record Supreme Court of India

Bibliography

1. Jaishree Laxman Rao Patil Vs. The chief Ministers & Others, Civil Appeal No. 3123 of 2020
2. Indra Sawhney Vs. UOI, 1992 Supp (3) SCC 217
3. Nikita Khrushchev, Political Theory and Thought, O.P. Gauba, Edn. 2017, Page 1.3
4. K. C. Vasant Kumar Vs. State of Karnataka, 1985 Supp SCC 714
5. Aristotle (384-322 BC), Legal Theory, Ian Mcleod Edn. 2007, Page 44
6. Jaspat Roy Kapoor, Member, Constituent Assembly, Vol-9
7. Mahavir Tyagi, Member, Constituent Assembly, Vol-9
8. Khandekar, Member, Constituent Assembly, Vol-9
9. K. M. Munshi, Member, Constituent Assembly, Vol-9
10. R. K. Sidhva, Member, Constituent Assembly, Vol-10, part-II
11. S. Nagappa (Madras), Member, Constituent Assembly, Vol-9
12. Article 15 &16, The Constitution of India, P.M. Bakshi, Edn. 2014, Page 31-35
13. Article 46, The Constitution of India, P.M. Bakshi, Edn. 2014, Page 107
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15. Constitution (First Amendment Act),1951, Constitution Amendments, JBA Publishers, Edn. 2006, Page 6
16. Constitution (Ninety Third Act),2005, Constitution Amendments, JBA Publishers, Edn. 2006, Page 382
17. Constitution (Eighty Ist Amendment Act),2000, Constitution Amendments, JBA Publishers, Edn. 2006, Page 357
18. Article 51A(J), The Constitution of India, P.M. Bakshi, Edn. 2014, Page 111
19. The PREAMBLE, The Constitution of India, P.M. Bakshi, Edn. 2014, Page 1
20. S. R. Bommai Vs. UOI, (1994) 3 SCC 1
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22. MR Balaji Vs. State of Mysore, 1963 Supp (1) SCR 439
23. P M Bakshi comments, The Constitution of India, P.M. Bakshi, Edn. 2014, Page 32
24. HM Seervai, The Constitutional Law of India, Edn. 2014, Page 562, Vol-I
25. Reclaiming the Vision by P.P. Rao, Edn. 2013, Page 72
26. Reclaiming the Vision by P.P. Rao, Edn. 2013, Page 78
27. Ronald Dworkin, Law’s Empire, Edn.2002, Page 413
28. Reclaiming the Vision by P.P. Rao, Edn. 2013, Page 72
29. Reclaiming the Vision by P.P. Rao, Edn. 2013, Page 73
30. John Rawls, A Theory of Justice, Edn. 2008, page 126