Reflections On The Constitutionality Of Our Constitution: A Take On Reservation Vis- À-Vis Human Rights

The relevance of the reservation system in 21st century India is analysed and interrogated through a discussion of human rights in the following article.

I. Introduction

“It is against the principles of humanity, it is against the dictates of reason that a man should, by reason of birth, be denied or given extra privileges.”

– Mahatma Gandhi

It has been decades since India gained Independence but it is still burdened with the agony of social discrimination which is deeply rooted in the Indian social ladder. The reservation system in India is one of the most hotly debated issues to date. According to the Merriam – Webster Dictionary, “reserve” means “setting aside something for a particular purpose or reason”.[1]

The reservation system is an arrangement to withhold or to limit some seats to uplift the status of the downtrodden. It came into force in our country to ameliorate and alleviate the grave concerns of the underprivileged sections of Indian society. Moreover, it was incorporated in the constitutional framework to build an egalitarian society and cherish the achievements of each individual contributing to our nation.

In the Indian context, the reservation system is a layout of affirmative action, whereby a fraction of seats is reserved in the private and public sectors, educational institutions, union and state departments, etc. Over the decades, the reservation system has become more of a story with unfulfilled potential and has lost the spirit with which it was subsumed. It has gradually taken an ugly turn owing to the restrictions imposed on the intermingling of classes in the social pyramid which led to oppressive acts of untouchability and an environment filled with animosity for the underprivileged.

Under the garb of reservation, social discrimination is practiced based on caste, creed, religion and it continues to haunt us for centuries. Looking at these inhuman practices prevailing in the society, it becomes imperative to question: Does India truly need such a reservation policy that further creates an internal partition in the pretext of upliftment of the socially and educationally backward sections of the society? The current scenario clearly depicts that since the inception of the reservation system, it has only violated the human rights of individuals over these six decades.

II. Historical Antecedents

To analyse the reservation system in India, it is important to trace its evolution from scratch which takes us to the age-old caste system prevalent in our country since time immemorial. The initial distinction of people into ‘Varnas’ was provided in the Vedas containing a hierarchy of the social groups with Brahmins (priests) being at the top of the order, then came the Kshatriyas (warriors) followed by the Vaishyas (merchants), and lastly, the Shudras (peasants, servants & labourers) who were at the bottom rung of the “social” ladder. However, the lowest social status was provided to the “untouchables” also known as Dalits who were not only excluded from the Varna system but also the Indian village life.[2] Gradually, the caste system seeped into various religious communities like Islam, Buddhism, Jainism to name a few.

Currently, the Indian society has become a conglomeration of Hindus, Muslims, Christians, Scheduled Castes (referred to as SCs), Scheduled Tribes (referred to as STs) & Other Backward Classes (also referred to as OBCs) along with members of other religious minorities.

The first far-sighted ruler to mention about ‘backward classes’ was Chhatrapati Shahu of the princely state of Kolhapur who brought reservations for the Non-Brahmin caste in 1902 inspired by Mahatma Jyotiba Phule who mooted the idea of reservation in 1881 in his statement to the Hunter Commission set up by the British government.[3]

In the pre-independence era, the reservation system was a blessing in disguise for the British Raj who craftily propagated the agenda of ‘Divide and Rule’ by providing separate representation to depressed classes through ‘Communal Awards’ and assigning them several seats to be filled by the elections from special constituencies where only the depressed classes could cast a vote. This was hugely criticized by social reformers like Mahatma Gandhi & Dr. Babasaheb Ambedkar who fought for the equal rights of Dalits.[4]

The reservation policies were refurbished after independence where the reservation for Scheduled Caste (SCs) and Scheduled Tribes(STs) was provided in government jobs and government-aided educational institutions. In 1979, the Mandal Commission was established by the central government to recognize the socially and educationally backward sections of the society and to include Other Backward Classes (OBCs) under the confines of the reservation system. It further used social, economic, and educational indicators to determine India’s backward classes.[5]

There is no separate reservation clause mentioned in the constitution of India but Article 15(4) and Article 16(4) allows the central and state governments to reserve seats in government services for the Scheduled Castes and Scheduled Tribes.[6] Recently, the Parliament passed the 124^th (Amendment) Bill, 2019 that provides for ten percent reservation in jobs and educational institutions to economically backward sections in the general category.[7]

Despite all the steps taken to inculcate equality in the system, the reservation system has become more of a threat to the masses than a blessing. It treats the unreserved sections of society as slaves who have to struggle for even the basic things they should otherwise be entitled to receive. Thus, no matter how far we go to achieve the concept of egalitarianism, we end up creating a more hostile environment for the people of our country who are confined by the shackles of reservation prevalent since time immemorial.

III. The Positive Discrimination Paradox

Positive discrimination in India was instituted when the framers of the Constitution-built policies regarding the reservation system to ensure a minimum level of inclusiveness for all the underprivileged sections of the society but little did the lawmakers know that this would raise some serious concerns. These concerns came with the application of a rigid ‘quota’ system wherein 50% of the total seats stand reserved in the pretext of uplifting the socially-marginalized sections of the society (comprising of Dalits and tribals).

Initially, the reservation system was supposed to last for a decade in the interest of fairness and long-run egalitarianism but, even after so many decades after independence, it is still in place, with no prospects of dissolution or even re-evaluation.[8] Moreover, recent studies have also revealed that India’s social inequality rates have been on the rise since 1990 along with an increase in poverty, belying a positive effect of reservation in the present years.[9]

The reservation system has clearly lost its essence and has become a means to cater to the vote banks of politicians who do not even give a second thought before keeping the country’s growth, development, and competency at stake.[10] This, in turn, has led to reverse discrimination because the majority feel acutely side-lined in jobs and positions in academics owing to the various quotas that exist. Over the years, it has not only hampered the social mobility of particular communities but has also led to a lack of morale and unrest in the public for the same.[11]

The biggest issue with the reservation system is that instead of abolishing discrimination based on caste it further propagates the idea of reservation through quotas in colleges, jobs, and even census surveys. [12] Therefore, creating an oppressive environment for the masses and fabricating communal conflicts, which causes as many problems as it resolves.

IV. The Exploitation of The Sanctity of a Constitutional Provision:

Although our policymakers enshrined the Constitutional provisions for caste-based reservation as an ‘enabling provision’ to ensure equality in opportunities and uniform representation across the nation, the ground realities are far from idealist legal opinions drafted on paper.

A caste-based reservation system that is prevalent in our nation has not only caused the promising futures of millions of aspiring students to go haywire, but it also raises serious concerns towards the visible abuse of these provisions in all major academic as well as vocational examinations. For instance, the cut-off scores for most major governmental examinations across the nation for citizens belonging to the reserved categories are less than even 1/4^th of the cut-off scores for the students belonging to the General category. On some remarkably infrequent occasions, the cut-off scores for the candidates of the reserved categories were found to be in ‘negative’,[13] which is utterly appalling and a coup de grâce to the universal standards of equality, justice, and unprejudiced opportunism.

Reservation not only permits one-sided benefits to flippant students who take their examinations for granted, but it simultaneously curtails the dreams of other meritorious students who actually strive hard to clear their examinations but are unable to procure a seat only because they had the privilege to be born in a higher-caste family.

Furthermore, in order to truly progress as an advanced democracy, we should inculcate an attitude of open-mindedness in our youth. However, being born in the second-most populous nation in the world with cut-throat competition in every major domain, it is pragmatically impossible for a student in India, especially if he belongs to the “General Category” to not get bombarded by continual condemnation and casteist remarks from the society to constantly remind him about how hard he needs to prepare to clear an examination. This is not only detrimental to the mental health of students but such critical remarks also have the potential of harming their psychology for a long time.

Mental health is a crucial element of overall well-being and reservation is certainly not alleviating the dreadful circumstances in any visible manner. Unsurprisingly, India has one of the world’s highest suicide rates among youth with an average of one student suicide every hour.[14] News pieces of students dying by suicide are treated as a casual affair in our country now and while every citizen is proactive in discussing the significance of mental health and urgent legislative interventions on social media but hardly anybody is willing to address and remedy the root causes behind such sorrowful incidents: reservation being certainly one of them.

To add up to the aforementioned atrocities, reservation also acts as a flagrant vote bank for politicians to secure votes and gain public empathy. Although this controversial issue has surfaced time and again, it has disgracefully failed to acquire any governmental consensus or judicial contemplation. The government justifies reservation by virtue of the pretexts of an archaic survey held in pre-independent (British) India that was conducted to evaluate the number of socially backward citizens residing in India. We are currently in 2020 and reserved category candidates occupy nearly more than 52% of governmental jobs in the nation,[15] therefore the exigency of the government to increase the number of social quotas is prima facie arbitrary and equivocal.

V. The Decimation of Human Rights

The reservation policy was supposed to be a tool to achieve justice for all and was subject to removal once the goal of equality laid down in Article 14 of the Constitution of India was achieved but now it has been wrongfully nurtured as a privilege for some and politically misused for selfish reasons causing widespread disparity in the society.

Not only politics, but the reservation system has also slipped into the education system chaining a free, democratic, and sovereign nation into its clutches. It has become an enemy of meritocracy by reserving one category against another.

It is clearly laid down in the constitution that every child has a right to education and it nowhere expresses that any child belonging to a backward section has a little more of this right than a child of the general category just because of the caste factor.[16] Despite this, selections in jobs and universities are not based on the sole criteria of merit but caste. This is a major reason why many meritorious and highly compatible students cannot take admissions in top colleges and prefer moving abroad for higher studies also leading to brain- drain.

A perfect reminder of brain drain and losing talented people is the CEO of Google, an IIT graduate Sundar Pichai, among many others, who were fed up with the reservation policies of Tamil Nadu along with fewer opportunities and decided to pursue studies from the United States.[17] Besides the issue of talent flushing, reservation also underrepresents the unreserved class, who are treated like slaves of the colonial era because they have to pay more for the same services by receiving a gift of humiliation in return.[18]

Looking at the stance of the Indian Judiciary, the history of reservation in India brings us to the case of State of Madras v. Srimathi Chapakam Dorairajan, where the Supreme Court held that the legislation and executive order which is based on the caste-based reservation is unconstitutional and a similar judgment was pronounced in Venkataraman v. State of Madras which compelled the judiciary to make amendments under Article 15 of the Indian Constitution.[19] In another famous case of Indira Sawhney v. Union of India, the Supreme Court held that the reservation should not exceed more than 50% and also excluded the ‘creamy layer’ because it was discriminatory and in violation of Article 14 & 16 of the Constitution of India.

Further, in many other judicial pronouncements, the Supreme Court has stated that reservation has failed in reaching its actual purpose. It has now become a tool of isolation than medicine for equality. Thus, the Apex Court seeks to achieve equality by making the reservation system a sort of redressal mechanism to uphold the principles of the Constitution of India and protect the human rights of every individual in the society.

VI. Recommendations for The Road Ahead

In a nation already beleaguered with a crippling economic framework, social turmoil, and rampant political propagandas, removing the reservation system altogether is not only impracticable but would be equivalent to adding fuel to the fire. Therefore, a few credible suggestions have been enumerated below which could help us pacify the scenario and create an internal atmosphere of peace and social tranquillity:

• Eradicating Illiteracy: This is an indispensable and a self-explanatory element to ensure the establishment of our country as a progressive democracy. Free education will equip our future politicians as well as the citizens to be conversant with the world around them and to address socio-legal issues with tolerance and a resourceful perspective. This will not only be beneficial for rectifying our Constitutional provisions on the reservation system but will analogously help us deal with other key concerns as well.[20]
• Welfare State: The government shall look after the weaker sections of the society and ensure that they are not shorn of rudimentary amenities such as food and shelter. This will enable all classes of our society to sustain themselves and stand up on their own feet. This can substantially help in the creation of a self-sufficient workforce who are not dependent on their social standing to seize employment opportunities.
• Creating ‘2 Birds with 1 Stone’ Policies: The government may propose a reasonable constraint to caste-based reservation benefits on each family. For instance, in a family of 5 people including 2 parents and 3 children, the right to reservation shall be available only to the first two children. This will help regulate the representation of backward classes in the nation and will simultaneously help in controlling the exponential population which is yet another vital concern for India.[21]
• Judicial Adherence: The government shall reflect upon effectuating the Hon’ble Apex Court’s pronouncement in the landmark judgment in Indra Sawhney vs Union of India[22] which provided for the segregation of ‘reservational’ profits for backward class individuals belonging to the ‘Creamy Layer’.
• Conducting Periodic Surveys: Such intermittent surveys will help the government to statistically deliberate upon contemporary insights and quantify an approximate figure of the total number of backward classes in India and their current socio-economic status. Moreover, such surveys will empower lawmakers to reckon whether affirmative actions have detached or lessened the bigoted nature of our social hierarchy.[23]
• Endorsing Greater Good: The need of the hour is not to primarily obliterate caste-based reservation but to rather exclude communities which are no longer backward or require the instrument of affirmative action to voice out their opinions. Such actions exhibit a magnanimous philosophy with positive connotations of a larger social good and communal harmony.[24]
• Devising ‘Fair’ Reservation Policies: The current reservation system if not abolished altogether, must be corroborated with impartial ‘reservational’ profits to meritorious students or those from economically weaker backgrounds. Weak financial status and prolific academic/extra-curricular achievements shall be the only two rational pretexts of availing reservation and over time, these constructive policies will certainly overshadow the damage done due to reservation.

VII. Concluding Remarks

Article 2 of the Universal Declaration of Human Rights (1948), which is regarded as the cornerstone in International Human Rights Law enunciates:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”

Without an iota of doubt, reservation, which was once looked upon as a benefit, once granted, cannot be relinquished. The ironical race to claim backwardness is evident among various groups, irrespective of their social progression or any likewise prospects for development. An apt example of this vociferous trend can be seen in the clamour of various communities across the nation protesting ferociously on roads and other public places for getting themselves enrolled in the reserved category. No wonder reservation remains one of the prime subject-matters for invoking occurrences of potential social upheaval.

According to Dr. Ambedkar, eminently entitled as the “Father of the Indian Constitution”, the reservation system should have ended way back in 1960[25] but even in the year 2020, pandemic-stricken India is still reeling under it and if we undermine the gravity of the situation, our future generations would encounter similar circumstances too.

The day we don’t judge another Indian citizen by his surname shall be the day when we would have truly overcome this sinister provision. Reservation is not only unfavourable for due compliance with essential human rights but it also paves the pathway for the balkanization of our nation, which shall be the last thing to wish for. It’s high time for our nation to move forward towards a caste-free regime and opportunities based on merit and “We, the citizens of India” shall ensure that there is no handicap to prevent us from seizing our righteously earned opportunities.

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[1] Merriam-Webster.com Dictionary, S.V. “reserve,” (last visited on Sep. 90, 2020), Available Here

[2] Nitesh Mishra, REVISED: An Analysis of Reservation in India, Law Times Journal (Feb. 17, 2019), Available Here

[3] Akshay Chavan, The First Reservations in India, Live History India (Jan. 17, 2019), Available Here

[4] Sonal Srivastava, All About Reservation Policy in India, iPleaders (March 9, 2016), Available Here

[5] Sumedha Upadhyay, Reservation: Understanding the Past, Present and Solutions, Youth Ki Awaaz, (Feb. 15, 2011), Available Here

[6] Anilabh Guhe, Reservation in India: Limitations, LexLife India, (May 7, 2020), Available Here

[7] V Nivedita, The 124^th Amendment: A Look at The Facts, The Hindu Business Line (Jan. 31,2019), Available Here

[8] Mili Mitra, Caste in Crisis: The Limits of Positive Discrimination in India, Brown Political Review (Mar. 30, 2016), Available Here

[9] Id.

[10] Supra, note 5.

[11] Quleen Kaur Bijral Bijral, Affirmative Action: The System of Reservations and Quotas in India, The Logical Indian, (Oct. 7, 2015), Available Here

[12] Supra, note 8

[13] Candidates With Negative Marks Qualifies for PCS Exam, Outlook India (Dec. 14, 2011), Available Here

[14] Devanik Saha, Every hour, one student commits suicide in India, Hindustan Times (May 08, 2017), Available Here

[15] Vinay Bhushan Upadhyay, Abolish Reservation Because Merit and Efficiency are in Danger, Legal Service India (last visited on Sep. 14, 2020, 11:11 PM), Available Here

[16] Supra, note 5.

[17] Shubham Sharma, How The Reservation System of India Is Defining a New Era of Human Rights Violation, Modern Diplomacy, (Jul. 5, 2020) Available Here

[18] Id.

[19] Supra, note 6.

[20] Abeer Kumar & Divyam Agarwal, Reservation – Solution To The Problem, Legal Service India (last visited on Sep. 15, 2020, 10:26 AM), Available Here

[21] Id.

[22] AIR 1993 SC 477.

[23] Ajaz Ashraf, Redesigning reservations: Why removing caste-based quotas is not the answer, Scroll.in (Sep. 05, 2015), Available Here

[24] Id.

[25] Soumyadipta Banerjee, Why India should shake off a caste-based reservation system entirely, Dailyo.in (Jan. 09, 2019), Available Here

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