lawyers in India

Can Reservations And India Bloom Together

Written by: Suvigya Saxena - IV year, BALLB (Hons.) National Law Institute University, Bhopal
Partnership laws in India
Legal Service
  • The controversy regarding the reservations in private unaided medical and engineering colleges in India arose after the Supreme Court held on August 12, 2005 that unaided minority and non-minority institutions had the absolute right to admit students of their choice in medicine, engineering and other professional courses without government interference. The anomalies created by the Supreme Court Judgment have given the BJP an opportunity to try and get mileage while asking for reservations in minority institutions.

    The announcement of the Human Resources Development Minister regarding the government’s intention to reserve 27 per cent of the seats for the Other Backward Castes in central educational institutes started an intense debate. It is also termed as Mandal II and ‘mandalisation of education’ by the students and the media.

    The Central Government is trying to implement reservations in the central institutes using the power it has accrued from amending the Constitution (104 Amendment, now known as 93rd Amendment) providing for special provisions for educationally, socially marginalised and other backward sections of the society along with the SCs and STs. The government was forced to amend the Constitution to provide for reservations in self-financing institutions by the militant struggles of the students across the country. The amendment was made after the Supreme Court had ruled that the government does not have any control over the private unaided institutes in a series of its judgments starting from the TMA Pai case in 2002 to the more recent P A Inamdar case. The Amendment enlarges the scope of Article 15 of the Constitution, which provided reservation of seats to SC, ST, and OBC students in government-aided educational institutions only. The Amendment would enable Parliament as well as the State Legislature to make appropriate laws for this purpose.

    The country has lived with the caste-based reservations for over five decades. The primary focus of reservations has been on the SCs/STs, up until a veteran politician brought the OBC issue to the fore.

    Specifically, the Government wants the Indian Institutes of Technology (IIT), the Indian Institutes of Management (IIM) and all federally funded universities to reserve 27 per cent of their seats for Other Backward Castes (OBC), over and above the 22.5 per cent quota for SC/ST students. The proposal to reserve 49.5 per cent of seats in `elite' institutions of higher learning is the main reason for the heat generated.

    Apart from the UPA manifesto that has put it on the agenda in general terms, in December 2005, Parliament approved the 104th Constitution Amendment Bill seeking reservation for SC, ST and OBC candidates in non-minority unaided private educational institutions. The Supreme Court has intervened and ordered the government to table the facts related to the proposed increase of OBC reservations.

    A vacation bench of Justice Arijit Pasayat and Justice L S Panta ordered the Union of India to answer to three crucial questions:
    1. What is the basis of the norms for fixing the OBC category?
    2. What is the rational behind fixing it?
    3. If the proposed reservation is implemented, what are the modalities and the basis for modalities?

    The History of Reservations

    The subject of reservations is a vast one, in terms of a historical account. A great deal has been written against reservations policies since the acceptance of the Mandal Commission Report in 1991 in favour of reservations in higher education and government services for the other backward classes of India. To look on the position in the foreign states, Americans, were influenced by the Indian experiment and ‘affirmative action’ was introduced in the 1960s with a view to giving a share to the discrimination African- Americans, Native Americans and other ethnic minorities. Other countries of Europe and America including Great Britain are now thinking along the lines of some reservation or affirmative action for ethnic and other minorities who are victims of discrimination by the dominating groups.
    In the Indian context, reservations were introduced during the last decades of the 19th century at a time when the subcontinent could be broadly divided according to two main forms of governance British India and the 600 princely states. Some of these princely states were progressive and eager to modernize through the promotion of education and industry; and by maintaining unity among their own people, like Mysore in south India and Baroda and Kolhapur in western India. Thus, the very first records of implementing reservations policies are from these princely states.

    Though it was only with the arrival of Ambedkar that the minorities acquired a leader of stature and education who could also make a political difference. The question of reservations was also discussed in the round table conferences and provisions were made in the Communal Award of 1935 in spite of opposition by Mahatma Gandhi. Ambedkar was appointed member of the Viceroy’s Executive Council and he submitted a memorandum titled, ‘On the Grievances of the Scheduled Castes’. The scheduled castes were allowed 8.5 per cent reservation in central services and other facilities for the first time in the history of India in 1942.
    Immediately after the adoption of the Constitution, the provision of reservation under Article 16 was challenged through a writ petition filed in the Madras High Court (State of Madras vs Champakam Dorairajan, April 1951). The case came before the Supreme Court of India. It was held that the communal government order of the Madras government fixing the proportion of students of each community that could be admitted to state educational institutions was ultra vires under Article 29(2). Post-independence India has witnessed many landmark cases which have affected the administration as well as interests of the scheduled castes, scheduled tribes and other backward classes. In the famous case of Balaji vs Mysore state in 1962, reservation orders were challenged on the grounds that the lists of backward classes were prepared only on the basis of caste and that this was unconstitutional. Then, the Supreme Court struck down the Mysore Backward classes list. Similar claims were again taken up in the Chitralekha case (Chitralekha vs Sstate of Mysore, 1964). In this case, the Supreme Court interpreted the Balaji case somewhat differently. Jayasree vs State of Kerala (1976), the Supreme Court accepted the logic of the Kerala High Court that economic backwardness plays a part in social and educational backwardness. In the Thomas case (State of Kerala vs N H Thomas, 1976) the Supreme Court upheld caste based reservation. The Supreme Court also observed that the aim of the Constitution is to eliminate caste from the affairs of the state. Yet certain backward castes have to be recognized and classified for compensatory measures so that caste can be abolished ultimately.

    The implementation of the recommendations of the Mandal Commission was challenged and opposed not only by angry students belonging to the Hindu upper castes, but also by the Supreme Court bar association. A writ petition was filed in the name of Indira Sawhney, one of the practising advocates of the Supreme Court. The promotion of scheduled castes was discussed and the Supreme Court held that there should be no reservations in promotion. In spite of all the opposition to Mandal, reservations in favour of the other back-ward classes to the extent of 27 per cent was upheld and the gitationists were disappointed. Reservations were originally provided for the scheduled castes and scheduled tribes. It was extended to the other backward classes at the national level in 1993. As in the days of old when some people raised the various cries, ‘religion in danger’, nowadays a new slogan is being raised: abolish reservations because merit and efficiency are in danger.

    Reservations Vs. No Reservations

    The word 'Reservation' is mostly misconstrued, misunderstood, vague, and even mythical. There is a general belief that those who oppose reservations are free from casteist considerations -- while those who support reservations are casteist, or vote hungry. The truth is that there are many sincere people on both sides. So the question is Do We Need Talent Or Reservations To Build Our Country? Most typical arguments made by those who oppose the very concept of reservations in higher education along with those who propose it, are discussed here.

    The opponents often consider it that reservations result in denial of seats to those with merit in the General Category. But in most cases, as per the proponents thousands of general category candidates with basic merit are competing for a few hundred seats. The number of reserved seats is limited to a few tens. Thus the maximum "loss" due to reservations is highly limited. Most general category candidates with merit lose out only because the number of available seats far outstrips the number of candidates with merit. But now when then reservations will rise up to 49.5% then it can not be said that so. It will only make the competition doubly tough (and it’s already one of the toughest in the world) for students who can’t avail the reservations resulting in denial of seats to the General Category. That will mean - more stress, more frustration and more discontent.

    The opponents of the reservations say that it results in diluting the quality of professionals (by letting in those with lower marks). When the 50% of the seats that gets filled up is not exactly based on the talent, it is bound to affect the quality of the students. It will also faint the brand image of the premier institutes as the image of the premier institutes is that it produces students of quality much better than most other will only get tarnished a bit as the other half might not have had the kind of background and aptitude as is the norm. But the proponents pay heed to the fact that the reservations are at the entry stage. Each reserved category student has to later qualify in the examination before becoming a doctor or engineer. The "merit" required for qualifying to be a doctor or engineer is NOT lowered by reservations. This is the reason why many reserved category students take longer to complete the course -- as also are some times withdrawn from the course. For this very reason, the students who pass out from private colleges too do not result in significant lowering of quality of professionals. The reality is that, many fit candidates are today denied opportunity simply because of shortage of seats. The advocates of meritocracy must answer as to why they conveniently forget about ‘talent' when seats are sold in the name of NRI quotas or through massive fees hikes. Why don't they oppose reservation of education for the rich through privatisation of higher education? If they are so concerned about talent, why they don't advocate further extension of central educational institutions like IITs and IIMs by increasing their seats and reducing the fees?

    Another argument given by the adversary against reservations is that India does not have the money or resources to increase the number of seats in our professional colleges. Also that, it will force more students to move to other countries for their higher education as if one can not find good seats in India, they would not be left with options other than to move to the other countries and the foreign institutes will only be glad to accept the Indian students. On the other hand the promoters believe that the youths should realize that we do have enough money and resources. It is vested interests (such as a section of the Indian Medical Association) who have been lobbying with the government NOT to increase the number of seats -- because in their myopic vision, this would create too many professionals in the country. The fact is that India is woefully short of professionals. Also they describe it to be ironical that those people who are crying hoarse over the loss of merit have never bothered to raise their voice when the government was commercialising education and allowing all sub-standard institutes to be set-up across the country.

    Then comes the issue of social inequality. As per the contenders of reservations, social inequity in India (in terms of under-representation of some identifiable communities within the elite) is due to general lack of merit of the concerned community. However the supporter of reservations say this is a racist (or casteist, if you may) stand that we need to reject outright.

    It is often argued that granting political equality to each individual Indian will result in every one getting what they deserve where as the reality is that when the seats are in short supply (as they are grossly so, these days), a lot of individuals who are "deserving" end up not getting admissions that they deserve. Conversely, the advocates of reservation state this would remain so even if there were no quota seats! The principle of "political equality" is valid only when the number of seats matches the number of those who deserve to get seats; and only when the problem of glaring economic inequity has been successfully tackled by society.

    Some sections of the opponents feel reservations to be acceptable on economic criteria; but not based on caste. After all we are all Indians. Nonetheless the proponents feel, both economic and caste criteria will need to be considered for social upliftment measures by the government. We cannot "claim" to be Indians (in a colour-blind, caste-blind way) where college admissions are concerned, and yet continue to have rigid castes on ground, whose members do not even inter-marry! This is an argument of convenience.

    Another genuine argument against reservations is that it will divide India, by asking for the caste of people. If 56 years are insufficient for the so-called uplift of backward classes, then does the government intend to continue the reservation system for an indefinite period? This is a serious issue to be pondered over. Isn’t it fair to say that instead of abolishing the caste system, this policy reinforces it?

    By implementing the reservation regime, hatred towards castes will be enhanced which will lead to aggravated tensions not only in the IIT and IIM classrooms, but across the entire country. Democratic government will fail to achieve its purpose and the hidden intention of the government to increase their vote banks will remain unfulfilled in the long run because the rest of the population will ultimately lose faith in the so-called democratic system. However on this note, the backer of reservation have no doubt that we will continue to ask for a person's caste and religion at least for the purpose of marriage -- for a very very long time to come. I do not believe that these real cultural diversities need to divide India. Let us accept reality -- that we are a country of many identifiable religious, linguistic, cultural and caste communities who would not normally inter-marry. We will need to build our country's unity within this diversity. I feel that it is important that we collect and maintain hard data regarding the caste and religious composition of our people -- to ensure that no single identifiable group would corner social resources disproportionate to their numbers. It has ALWAYS been such iniquitous cornering of resources that has divided countries -- anywhere in the world. Hiding of facts from census reports has never succeeded in preserving a country's unity!

    Also Reservations (in India) are different from Affirmative Action (in the US). It is true that Affirmative action in the US works without fixed quotas, and is voluntary -- at least in a nominal sense. But in practice, institutions and private companies have set up quota targets for themselves. The government periodically conducts audits, and penalizes organizations that are lax in implementing Affirmative Action by withdrawing government contracts. Tax breaks too are offered to encourage Affirmative Action. Since 1965, Affirmative Action has created a large "creamy layer" of blacks -- though bulk of the blacks still remain ghettoized. It would seem that they now would need to introduce an "economic criterion" too in their Affirmative Action. But wouldn't that be socialism?

    Reservations in India primarily benefit the creamy layer within the eligible groups. This is true in India, as it has been in the US too. This is so because, WITHIN the quota group, the selection is always based on merit. How can this be otherwise? The basic aim of the reservation policy was to give students belonging to SC/ST/OBC equal opportunities because of their social disadvantages and lack of resources and exposure. But the question is whether this purpose has been accomplished with reservation quotas. Reservations were part of the constitution when it was released in 1950. However, that was supposed to be a temporary measure and to serve for a limited period. But even after 56 years, the policy claims to be a measure to promote equality and freedom. We can "skim out" the cream from the quota groups -- this will benefit the reserved groups, but will further increase the shortage in the general category. Is this what the society wants? The only solution is to increase the number of seats.

    I am all in the favor of having laws and rules to make sure that the underprivileged get more opportunities and it’s the duty of the government to think about that. But then, that should be done at the primary and elementary school level and not at the professional level or if the government wants it can make separate schools and colleges for reserved category people. Reservation in higher education is violation of Article 26, Para 1 of Universal Declaration of human rights.

    Article 26

    (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
    And having a reservation based on the caste system is nothing but laughable. The real differentiator is the financial background and not the caste background. It is an assault on talent; after all, intellect has no caste. Let’s not try to solve a problem, which existed in 80’s and earlier now, without validating if it makes sense in the current situation.

    Having said that - it only pains to know that the authorities in the excitement of forcing the laws forget that steps like this will only create more mediocres. We, as a country, have had our share of mediocrity - it’s time to move a ladder up. Education is a mere tool. There is no dearth of education in India. What we need to develop in India is a sense of entrepreneurship. That is one area no reservations will ever work, or even needed.

    Dr Ambedkar and the framers of the constitution envisaged the reservation provision for ten years, so that the society is synchronized. Instead of pursuing the spirit, the ruling elite used it as a tool, political weapon, and keeps the national habitat divided. Shall reservation be perpetual? Reservation conceptually means a small percentage of whole. The reservation has been used by haves among the SC/ ST at the huge cost of the really needy people. The present India is divided only in haves and haves not, not otherwise. It shall be proper to have reservation a sensible proportion for these haves-not as a whole, not dividing them in caste, creed , sex, religion- the true spirit envisaged by the framers of constitution. Study Dr. B. R. Ambedkar in totality not in isolation who stood for national integration , not its fragmentation.

    The opposition to reservation arises from those sections that include a large number of the economically deprived. Actually, both the votaries and opponents of reservations seem to consider admission into the limited number of seats and recruitment to the limited number of jobs available as the crucial question for their economic progress. Reservations are one of the important issues raised by the national movement to uplift the socially oppressed sections of our society. Though the reservations were intended as a temporary measure, the failure of the successive governments in ensuring equitable and speedy economic development led to their continuation and made them a contentious issue. We must understand that it is not the policy of reservation that lies at the root of the problem but it is the limited number of employment and educational opportunities that is the root cause.

    Due to this failure of the successive governments, meritorious students are suffering because they are being precluded from their seats and backward class students are suffering because even if they are meritorious, the quota tag will always be attached to them wherever they go. Even if some people argue that the basic level of education is not the same, it is not the fault of students from the general categories.

    Some people do argue that reservations have benefited only a small section of the people. It has become a political game and the people who should get this opportunity do not get it. People who have money and power get fake backward class certificates and prove before the government that they deserve reservation. At the level of facts, this is true and it becomes nothing else than a sheer attempt to amputee the budding wings of people from General Quota. But instead of pointing to the futility of reservations it only points to an important fact-that unless democratic movement becomes strong enough to get the provision of reservations effectively implemented, this limitation will continue and cannot be avoided.

    This decision is a step for setting wrong trend. - Today, it is demanded for these premier institutes. Tomorrow, somebody will demand the same for actual placements in the other fields including the private companies. So, why should there not be reservations in the field of Acting, Art, etc. Is there an end to it? In the end, I would just say that India and reservations can bloom together only when reservations are made on reasonable basis.

    More Related Topics:
    Reservation in Educational Institution: Union HRD Ministry's proposal of 27 per cent reservation for OBC students in Centrally - funded universities has re-ignited the merit vs caste debate.....By Vishal Vora
    Reservations In India
    Review of Reservation Policy
    Reservation - a boon for our country
    Reservation- Solution To The Problem
    Reservation-Changing Aspect In Modern Time
    Reservation for Women In the Board of Directors
    The Mandal Commission View - The Present Day Exclusion
    Abolish Reservation Because Merit And Efficiency Are In Danger
    Reservation and the principle of equality
    Can Reservations And India Bloom Together?
    Critical Analysis on Reservation Policy in India
    Dynamics of Reservation Policy – Towards a More Inclusive Social Order
    Conversion and Reservation: Christian Dalits and the Obstacles to Social Mobility

    The author can be reached at: [email protected] / Print This Article

    How To Submit Your Article:

    Follow the Procedure Below To Submit Your Articles

    Submit your Article by using our online form Click here
    Note* we only accept Original Articles, we will not accept Articles Already Published in other websites.
    For Further Details Contact: [email protected]

    Divorce by Mutual Consent in Delhi/NCR

    Mutual DivorceRight Away Call us at Ph no: 9650499965

    File Your Copyright - Right Now!

    Copyright Registration
    Online Copyright Registration in India
    Call us at: 9891244487 / or email at: [email protected]