Times Face-off: Time to lift the 50% limit on the total reserve? | India News
FORWARD VERSUS BACK: The reservation, a hot topic in the country, continues to bring people to the streets
Almost 30 years after a 50% cap was imposed on total reserves, SC is considering the issue again. Time to lift the lid or not?
Quotas cannot be reduced to a mathematical formula. Leave the decision to the states
Justice (Retd) D Hariparanthaman(FOR)
In the famous Mandal case (Indra Sawhney vs. Union of India), a court of nine Supreme Court judges recorded that the Hindus who form the majority in our country are divided into four varnas – Brahmins, Kshatriyas, Vysias and Sudras – forming four -level hierarchical caste system. All the women are supposedly Sudras.
The panchamas (untouchables) are outcasts and are subject to the suppression of the four varnas. In short, inequality is built into the caste system. Thus, sudras (socially and educationally backward classes – ESCB) and untouchables (programmed castes) are deprived of education and excluded from the administration. ESCB, SC and ST constitute backward classes.
The following lines are extracted from the judgment of the Madras High Court dated April 18, 1914 in Gopala Moopanar against Dharmakarta Subramaniya Iyer, handed down by Judge Sadasiva Iyer: “However, due to the repression of Kshatriyas and Vysias by the Brahmins in medieval times, most of the Kshatriyas and Vysias have descended to the position of Sudras ”.
Thus, the backward classes, deprived of education and excluded from the administration, constitute a great majority among the Hindus. The debate on the reserve and the percentage of it will be carried out taking into account this historical background.
While Article 16 (4) of the Constitution has provided public employment reservations to the backward classes, unfortunately the originally promulgated Constitution did not provide educational reservations. This led to the insertion of article 15 (4) through the first amendment to the Constitution that extends the reservation to education.
The reservation to the backward classes has faced various obstacles caused by the ruling castes. One of those hurdles is the attempt to set a 50% ceiling on the quantum reserve.
Nowhere does the Constitution prescribe a maximum limit of 50% on the quota. However, in 1962, a five-judge Supreme Court court in MR Balaji v. Mysore State ruled that the reserve should be less than 50%.
However, in 1975, another court of five Supreme Court judges in the case of the state of Kerala v. NM Thomas, considering all the decisions related to the maximum limit of 50%, concluded that the reserve percentage would depend on the facts and circumstances of each. case and a hard and fast rule could not be established. The matter of the quota cannot be reduced to a mathematical formula so that it adheres in all cases uniformly.
In fact, the Supreme Court gave an example that if a state government provides an 80% reserve based on the population of backward classes in that state being 80%, the policy cannot be criticized. According to the ruling, the overriding object of the reservation is to take measures so that inadequate representation is adequate for the backward classes in public employment and education.
However, many state governments and the central government did not identify ESCBs under article 340 of the Constitution, denying them the reservation. As recently as 1990, the VP Singh government provided a 27% reserve to ESCBs in central government employment by implementing the Mandal Commission’s recommendations.
There is no total prohibition regarding the reserve percentage in the Mandal judgment, as in the 1962 judgment cited above. However, it took the central government about two more decades to provide a 27% education reserve to ESCBs. Still, many state governments in North India have not provided reservations to ESCBs on education and public employment.
The constitutional objective can only be achieved if the ESCB, SC and ST occupy the highest echelons of service and not only the lower services. Supreme Court Justice Chinnappa Reddy expressed his point of view in the Vasanth Kumar case in the following words: “Why not ask why 35 years after Independence, the position of cataloged castes, etc. not much improved? Isn’t it a legitimate question to ask if things could have been different, if the District Administrator and State and Central Bureaucrats had been drawn in greater numbers from these classes? ”
Now, even after 75 years of Independence, the situation does not improve, as there are not many ESCB, SC and ST judges in the higher courts and the Supreme Court. There is almost zero representation for the reserved categories among the executives / secretaries in the Central Secretariat where policies are decided, in the IIT and IIM and in the Public Sector Companies. It is time for the 50% limit invented by the judiciary to be removed, leaving the responsibility to governments, as made clear in the 1975 NM Thomas case.
(The author is a retired judge of the Madras High Court)
Crossing the current 50% limit may eventually leave us with 100% odds
D Shyam Babu(AGAINST)
Some of the reasons for opposing the proposed extension of all quotas in government positions and in university positions beyond the current 50% limit are quite trivial. For example, one argument is that the measure (now a question before the high court) may be contrary to what our creators of the Constitution envisioned, while another sees it as reeking of vote bank politics.
We find the provisions for reservations in favor of registered castes and registered tribes (SC / ST) in Articles 330, 332 and 335 of the Constitution of India. While the first two articles stipulate quotas in the legislature, article 335 deals with labor quotas. Nowhere else are there reservation provisions for other groups. Currently, all quotas for groups other than SC / ST are granted as exceptions to the fundamental right to equality. Governments don’t even bother to amend section 335 to add new groups, as it would expose bankruptcy by not thinking about the whole thing.
Parliament has the power to add new provisions to the Constitution and the Supreme Court through judicial review can uphold a constitutional law. Therefore, the legal or constitutional arguments against crossing the 50% mark are not valid, although they are sound and logical. While holding the OBC reservations in 1992, the court somehow raised the floodgates in half, and is now ready to determine whether further lifting is warranted.
As for the hint of vote bank politics, this is how democracy works. However, the outrage against the issue is this: for decades we have witnessed the arguments that certain groups deserve reservations because they are as poor and as disadvantaged as the SC / ST. It is now formal and constitutional that CBOs are identical to SC / STs. So the implication is that while in 1950, a quarter of the population of India (SC / ST) was very poor and discriminated against enough to grant them reservations, in 2021, about two-thirds of the population of India! India is indeed the SC / ST!
How have we achieved this stupendous achievement? Modifying the Constitution!
It is a positive development that a constitutional court is examining the matter comprehensively. The big picture begins with the Constitution Act (Amendment 102) of 2018 that established the National Commission for Retrograde Classes (NCBC). Parliament copied and pasted section 338 to create section 338 (B).
Article 338 creates the National Commission of SC / ST. In the early 2000s, this article was duplicated as section 338 (A) to create a separate commission for STs. The move did not attract much attention as the SC / ST are identical in several respects. Therefore, Articles 338 for the CS and 338 (A) for the ST fit perfectly into our constitutional scheme as well as our moral imagination.
But the problem comes with another replica of section 338 as section 338 (B). We are obliged to hear arguments in favor of increasing the quotas above 50% that groups such as Marathas, Patidars, Jats, etc. are not only poor but are similar to the SC / ST, what’s more, they are also the SC / ST but they are called OBC. The fact that seven decades of democratic governance has not only increased the number of poor, but that many of them resemble the CS / TS is an inconceivable twist of reality.
Beneath the surface of the demands and arguments for more quotas is the feeling that each group deserves its share of resources, and that share must be proportional to their number. It may seem reasonable and be consistent with the logic of democracy. But since India is finely divided into thousands of sub-castes, the social justice provided will result in more litigation, quota demands from all other groups, and whatever. The real question, therefore, is not whether to cross the 50% ceiling, but whether to have 100% quotas.
Recently, Michael J. Sandel of Harvard University has revived, in his book, The Tyranny of Merit, an old idea about how the lottery might be a better way to select successful candidates for college admissions. Rather than compiling the list of merits for a few hundred thousand applicants, a simple system could be constructed by first removing the bottom tenth or fourth that is deemed unfit, and then selecting the winners by lottery. India’s governance failures have created both victims and false winners. The mere accident of one’s birth determines whether one will be a winner or a loser. We need a system that does not punish victims or reward winners. The lottery to select candidates for college admissions and public employment could be that system, not raising fees.
The author is a Principal Investigator at the Delhi Policy Research Center.