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A Humongous Curse

The original Constitution of India had two important clauses: 16(4) and 335. The Article 16(4) of the Indian Constitution (1949) states: “Nothing in this Article shall prevent the State from making any provision for the Reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” On the other hand, the Article 335 mentions that “the claims of the members of the Scheduled Castes (SC) and the Scheduled Tribes (ST) shall be taken into consideration, consistently with the maintenance of efficiency of Administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State (Province)“. In 1992-93, the Supreme Court (SC) of India gave two orders while delivering verdict in the Indra Sawhney and Others versus Union of India Case. As per the first order, Article 16(4) shall be applicable only in case of socially backward persons, and secondly, more than 50% of positions should not be reserved. In a way, this case laid down a ceiling limit (the 50% rule) within which reservations can be granted.

In a landmark ruling delivered on November 7, 2022, the Apex Court upheld by a 3-2 majority the Constitution (103rd Amendment) Act, 2019, introducing 10% reservation for the Economically Weaker Sections (EWS) among the unreserved categories in admissions and Government jobs. The majority view, as explained by one of the five judges of the Constitution Bench, described reservation as “an instrument not only for inclusion of socially and educationally backward classes to the mainstream of society, but also for the inclusion of any class or section so disadvantaged”. While Justices Dinesh Maheshwari, Bela M Trivedi and J B Pardiwala agreed that the amendment does not violate the Basic Structure of the Constitution, retired Chief Justice of India (CJI) U U Lalit and Justice S Ravindra Bhat dissented, stressing that the EWS quota is “contradictory to the essence of equal opportunity” and “strikes at the heart of the equality code”.

This judgement is undoubtedly historic, as the SC ordered 10% reservation for economically backward classes in the so-called General Category. For a long period of time, there were reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBC) in the South Asian nation. In a rare first, the Indian Judiciary has talked about reservation for the people belonging to the General Category. Most importantly, the SC has mentioned a further 10% reservation on the 50% cap on ceiling. In other words, the recent judgement of Apex Court challenged the verdict of the Indra Sawhney Case in these three aspects. Hence, this judgement is a historic one.

Those, who prepared the Constitution of India way back in 1947-50, incorporated the provisions of Reservations in an attempt to establish Social Justice. However, there is considerable room for doubt as to whether Social Justice has been established at all, 72 years after the promulgation of the Constitution (on January 26, 1950). Arbitrary reservation in Government jobs has continued, ignoring the conditions of promotion or superiority mentioned in Article 335. In today’s era of severe unemployment, qualified candidates belonging to the so-called Upper Caste (read Rare Forward Class) find it difficult to get Government jobs in India. On the other hand, there has been no improvement in the status of Scheduled Castes and Scheduled Tribes. Only children of the privileged SC and ST families (majority of whom are senior Government employees) are enjoying the benefits of reservation. The condition of the economically weaker sections of Scheduled Castes and Scheduled Tribes remains the same. In the Indra Sawhney Case, these people (the Creamy Layer) were denied the benefits of reservation. As no one has determined the creamy layer till date, the Government of India has allowed these people to enjoy the benefits.

The fact is even if children from the backward class get Government jobs, their respective families hardly enjoy the benefits, because they get separated from their family members. They no longer join their family profession. This scenario is very common in case of farming. Many Indian families are engaged in farming. Because of old age, a number of farmers become unable to do their job. As their children are Government employees, they rarely exhibit interest in agriculture. Hence, the agricultural production, too, is disrupted due to this.

Unfortunately, no Government or political outfit cares about it. Instead, the Government of India has repeatedly amended Article 16(4) of the Constitution in order to make the reservation of backward classes much easier and convenient. No political party has ever been seen opposing this move in the Parliament. Almost all the political outfits consider the Scheduled Castes, Scheduled Tribes and Other Backward Classes as their vote banks. Hence, they back the provision of reservation for the sake of getting votes. The Indian political parties do not bother about Social Justice. As a result, Indian society is facing an extreme crisis today.

Majority of Indians do not expect political parties to resolve this crisis. Their only hope is that the Supreme Court can resolve the issue, and safeguard Democracy. The Apex Court has already gone a step ahead by raising the issue of Economic Backwardness in its recent judgement. What the Judiciary needs to do is to abolish caste-based reservation system, and to make reservation only on the basis of economic backwardness (irrespective of caste).

In that case, the issue of Social Justice could be addressed in a proper manner. Judiciary is the only hope for the people of India in this venture.

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