Introduction
India is a land of numerous communities. Some were historically more dominant than other, creating generations of opportunities for some at the cost of oppression of others. Reservations have been a heavily debated topic for years. While some are ardent supporters of implementation of affirmative policies for the upliftment of disadvantaged communities, there are others who are critics of reservation policies for several reasons. Many countries have affirmative policies in position, which refer to making of favourable decisions to encourage the upliftment of people in society earlier discriminated against.
That’s why they are also known as positive discrimination. The aim of reservations have been to bring the communities who have been historically discriminated against up to the level of the rest of the society and after years of alienation, integrate them into mainstream society. The injustices caused because of the existence and functioning of the caste system in India has placed a moral debt upon the better offs to provide them with certain benefits now, so that they are able to come to the same footing as the rest of the society. The injustice cannot be undone but through reservations, it’s a tool for us to atone for those wrongs.
Constitutional provisions for OBCs
The constituent assembly was concerned with adequate representation of minorities in the political sphere and therefore, discussed reservation policies in that respect. There was unanimous consensus amongst the members that there ought to be proper representation of all communities and groups. The only issue of contention was the fine points of how much and where. Initially only the most prominent disadvantaged groups of Schedules castes- the untouchables and Scheduled Tribes were considered for reservations until the Mandal Commission report in 1980. Certain constitutional provisions were adopted to acknowledge the discrimination that many communities had faced historically and strive towards equality of all citizens. Certain fundamental rights were constituted and enshrined in part III of the constitution which served as non-negotiable rights of the citizens of the country. Article 14 gave protection of equality; with the exception to the power of state to make policies for reservation for communities in need. This is in line with India’s path towards implementation of affirmative policies or positive discrimination.
The problem with identifying the other backwards classes (OBC) is that there is no definition for them mentioned anywhere in the constitution[1] in contrast to definitions provided for SCs and STs in article 366 clauses (24) and (25). While there exists constitutional provisions which directs states to take affirmative action in favour of ‘backward classes’ there exists no formal definition for OBCs[2]. Article 340 (1) & (2) which gives power to the president to appoint a commission to look into the problems faced by ‘socially and educationally backward classes’ , prepare a report of their findings and make appropriate recommendations to the state to make policies in order to improve their condition. In response to the case of State of Madras v. Champakam Dorairajan[3] clause (4) of article 15 was inserted by the 1st amendment, providing the government with the power to make special provisions for betterment of any ‘socially and educationally backward classes’[4]. Clause (5) of article 15 also provides similar powers to the government, inserted by the 93rd amendment act[5] regarding reservations for disadvantaged communities of SCs, STs and OBCs in educational institutions. This clause was added in response to the case of P.A Inamdar and Ors. v. State of Maharashtra and Ors[6]. Lastly, clause 16 (4)[7] empowers the state to make adequate reservations for backward classes so far as the state deem fit in areas of government services.
Mandal commission and two perspectives on its report
Initially only the prominent disadvantaged groups of Schedules castes- the untouchables and Scheduled Tribes were considered for reservations until the Mandal Commission report in 1980[8]. A decision was taken by the Janata party government in 1979 to appoint a commission under article 340 to
- Determine a criteria to put communities under the bracket of other backward class communities
- . Find out about their status and financial capabilities, recommend if reservations are required
- Recommend ways in which upliftment of these communities can be done and lastly,
- Present a report with data and facts relating to their findings[9].
The Mandal commission report concluded that OBCs instituted 52% of India’s total population and recommended that 27% seats must be reserved in govt. institutions jobs and educational institutions.
Two opinions prevail on the criteria used by the commission to put people into OBC category. A majority opinion is that of criticism towards the committee’s usage of caste as an indicator[10] as this gave chance to successive governments to try and implement the recommendations of this report was more due to political reasons rather than economic reasons. Referring to the vote bank politics angle which would be ensured from many of these communities mentioned in the report, for obvious reasons that people will want to support those leaders who are seen to work for their betterment[11]. In line with the criticism towards the commission for using caste as the main parameter, many have pointed out the unfairness towards other religions who did not follow the caste system[12]. Categorization method was communal and not secular, like how it should’ve been.
The second opinion defends the commission’s parameters of categorization by arguing that the only people accusing the commission report to be casteist are the upper caste well off population, threatened by such an infiltration on their supremacy. The committee in fact had not considered caste as the only parameter[13]. According to Choudhary, Mandal commission’s approach cannot be considered to be faulty because firstly, other than caste they also considered several other points[14]. Secondly, considering caste as one of the parameters is not a bad idea since the Varna system literally discriminated every other caste other than the top two superior casts of Brahmans and Kshatriyas.
In the Indra Sawhney v Union of India[15], judges agreed with the usage of caste as an important criteria however, also added that it should not be the sole criteria. Another judgement where the judges, while deciding on another topic also questioned the use of caste as a sole parameter in S.R Bommai v. Union of India[16]. This line of argument is further supported by Nani Palkhivala’s criticism of the Sawhney judgement[17]
Nonetheless, after about 2 decades of its existence, recommendations of the Mandal commission was finally implemented by V.P Singh’s government. This started nation-wide opposition to reservations.
Aftermath of implementation of the Mandal commission
Soon after the decision of implementation of the Mandal commission’s recommendations was announced in 1990, the nation erupted with strong opposition against it. One of the reasons for V.P Singh and his govt. National Front collapse later on was also this. There was wide spread anti-Mandal mania, in the words of K. Balagopal[18].
Students self-immolated themselves in an attempt to show their opposition towards the government decision for reservations to OBCs and several petitions were filed before the Supreme Court to nullify government’s decision. All this ultimately came to the court for justice in the case of Indra Sawhney v. Union of India[19] decided by a 9 judge bench. The court upheld the government’s right to implement laws for the upliftment of backward classes and allowed 27% reservation. However, recognised something called the ‘creamy layer’ and excluded them from reaping the benefits of such benefits given by the government. The reservation cut off percentage was fixed at an upper limit of 50%. Government was directed not exceed this threshold.
Several states like Tamil Nadu, Karnataka, Gujarat and Telengana however, sought to circumvent the Mandal ruling by placing it under the 9th schedule of the constitution which provided immunity from judicial review. In the important case of I.R. Coelho by LRS v. State of Tamil Nadu[20]it was held that laws implemented under the 9th schedule could also be subjected to judicial review[21]. Tamil Nadu government was directed to follow the SC’s order of not making reservation for more than 50% of the seats.
Anti-reservation protests, 2006
Soon after came the case of P.A Inamdar & Ors. v. State of Maharashtra and Ors.[22] and the court decided that the government cannot impose reservation policies on private educational institutions. To circumvent this decision of the SC, the 93rd amendment act was implemented[23]as well as a Central Education Institutions Act, 2006 (CEI)[24] was also passed by both the houses of the parliament. This ensured reservations in several eminent educational institutions across the country. In response, students protested in large numbers questioning the value of merit left in taking admissions and the lost opportunity of deserving general category students.
In the environment of extreme agitations, a case was file against the Supreme Court challenging reservations of students in educational institutions. In A.K Thakur v. Union of India[25] article 15 (5), the CEI Act were challenged and report of Mandal commission was challenged for being casteist in nature. The court held the 27% reservations set up by the government valid barring the ‘creamy layer’.
The creamy layer debate
In recent times, the issue of creamy layer is the most important reservation topic of discussion. Creamy layer refers to economically well off people from all the reserved categories. The creamy layer argument has been the main argument of anti-reservationists for years. This concept was first talked about in the case of State of Kerala v. N. M Thomas[26] where a judge expressed concern about the well-off people belonging from backward classes getting the most benefit while the poor remain poor. Especially in regards to OBCs, it was well known that many of them were not as downtrodden as much as the SCs and STs[27]. Therefore, the whole purpose of affirmative action/positive discrimination gets defeated if comparatively well off OBCs also get reservations. After the court decision in the Indra Swahney case, the Department of Personnel and Training (DoPT) came out with divisions under the creamy layer in 1993[28].
A lot of debates and opinions regarding the creamy layer has taken place. For example, M. S.S Pandian wrote defending the creamy layer’s right to also get benefits of reservations. He wrote specifically in the context of students and faculty belonging to Indian Institute of Technology. Giving the example of IIT in Tamil Nadu, where there is below the fixed percentage of representation of backward classes both in the faculty team as well as the student body, he points out that it is very odd that this is the case of the same state which had earlier amended the constitution to reserve more seats. Therefore all the talk that inclusion of creamy layer within reservation categories will somehow take away the place of a more meritorious non-reserved category students, doesn’t make sense because possibly we’re still in the early stages of affirmative action and enough OBC students still do not get an opportunity to come and study even though there are benefits in place reserved for them. He felt that this ferocious opposition to the inclusion of creamy layer in the list of beneficiaries as a ‘war dance against the creamy-layer. A tactic used to retain age old privileges’. The creamy layer requires the support of government benefits to motivate students from backward communities to enter big educational institutions[29]. Exclusion of the creamy layer will take valuable opportunities away from the section of OBCs who have most likely chances to succeed, taking away the whole idea of representation[30].
The present
Through a 2014 empirical study, comparing OBC reservations in 3 states, two authors concluded that under representation of OBC students were little to none and therefore, reservations have not effected the meritorious value of these prestigious universities, which they were so concerned about[31]. In conclusion, the government should now slowly consider reducing reserved seats as with reservations, there’s always going to remain a class/caste difference and what the initial aim of reservations were, will not be reached. These has been so much discussion in regards to the caste basis of OBC categorization that not enough attention has been provided to minority religious communities under OBC category[32].
In recent news about reservations, the government passed the 124th Amendment bill, 2019 seeking to implement article 15 (6) and 16 (6) which would grant 10% reservations to the economically backward section of the unreserved category. A petition by the organisation Youth for Equality has already been filed in the Supreme Court against it[33].
Conclusion
What started out as a welfare measure has over time taken the role of political safeguard in order to ensure votes from those communities. There must be continuous evaluation of already existing benefits and ways to make India reservation free as it creates a lot of invisible barriers in the minds of people. Politics has played a larger role in shaping current OBC policy than reasoning and evidence. While reservation policies are required and understandable, it is important that we update the criterions used to classify who can avail these benefits in order to give chance to the most deserving. Reservations must not become a political gimmick at the end of the day.
[1] Constitution of India, 1950
[2] A. Ramaiah, ‘Identifying Other Backward Classes’ (1992) 27(23) Economic and Political Weekly https://www.jstor.org/stable/4398478 accessed 5 June 2020
[3] AIR 1951 SC 226
[4] Constitution of India, 1950, Art. 15 (4), inserted vide The Constitution (First Amendment) Act, 1951 (w.e.f 18 June, 1951)
[5] Constitution of India, 1950, Art. 15 (5), inserted vide The Constitution (Ninety-third Amendment) Act, 2005 (w.e.f 20 January, 2006)
[6] (2005) 6 SCC 537
[7] Constitution of India, 1950, Art. 16 (4), inserted vide The Constitution (seventy-seventh Amendment) Act, 1995
[8] Malavika Prasad, ‘From the constituent assembly to the Indra Sawhney case, tracing the debate on economic reservations’ The Caravan (28 March 2019)
[9] A. Ramaih, ‘Identifying Other Backward Classes’ (1992) 27(23) Economic and Political Weekly https://www.jstor.org/stable/4398478 accessed 5 June 2020
[10] Sebastian Morris, ‘OBC reservations in Higher Education: Are They worth All the Turmoil?’ (2006) 41(26) Economic and Political Weekly https://www.jstor.org/stable/4418393 accessed 5 June 2020
[11] Ira N Gang, Kunal Sen and Myeong-Su Yun, ‘Was the Mandal Commission right? Differences in living standards between social groups’ (2011) 46(39) https://www.jstor.org/stable/23047212 accessed 5 June 2020
[12] A. Ramaih, ‘Identifying Other Backward Classes’ (1992) 27(23) Economic and Political Weekly https://www.jstor.org/stable/4398478 accessed 5 June 2020
[13] Kameshwar Choudhary, ‘Reservation for OBCs: Hardly an Abrupt Decision’ (1990) 25(35) Economic and Political Weekly https://www.jstor.org/stable/4396705 accessed 5 June 2020
[14] To measure social and educational backwardness, weighted indicators were created: four social indicators weighing three points each, three educational indicators weighing two points each and four economic indicators weighing one point each
[15] AIR 1993 SC 477
[16] (1994) 3 SCC 1
[17] P.P Rao and Ananth Padmanbhan, ‘Legislative circumvention of judicial restrictions on reservations: political implications’ (2013) National Law School of India Review https://www.jstor.org/stable/44283609 accessed 5 June 2020
[18] K. Balagopal, ‘This Anti-Mandal Mania’ (1990) 25(40) Economic and Political Weekly < https://www.jstor.org/stable/4396832> accessed 5 June 2020
[19] AIR 1993 SC 477
[20] AIR 2007 SC 861
[21] Satya Prakash, ‘9th Schedule open to review: SC’ Hindustan Times (18 Jan 2007) https://www.hindustantimes.com/india/9th-schedule-open-to-review-sc/story-Q1QgofNmGIIrLlNOePiI5L.html
[22] (2005) 6 SCC 537
[23] 93rd amendment act was imposed to promote educational upliftment to backward classes
[24] Central Education Institutions Act, 2006
[25] 1950 SCR 88
[26] 1976 AIR 490
[27] Sebastian Morris, ‘OBC reservations in Higher Education: Are They worth All the Turmoil?’ (2006) 41(26) Economic and Political Weekly https://www.jstor.org/stable/4418393 accessed 5 June 2020
[28] Apoorva Mandhani, ‘What creamy layer is & why Supreme Court kept affluent SC, ST members out of quota benefits’ The Print (4 December 2019) https://theprint.in/theprint-essential/what-creamy-layer-is-why-supreme-court-kept-affluent-sc-st-members-out-of-quota-benefits/329790/
exclusion of sons and daughters of people already employed in govt. services at the central or the state level, public sector and the army. Along with this, an annual income upper limit was also fixed at Rs. 1 Lakh and above was also fixed. This income caveat has been revised several times since then and the last time it was revised was in 2017 where it was raised to Rs 8 lakhs per year.
[29] M.S.S Pandian, ‘Myth of Creamy Layer’ (2000) 35(17) Economic and Political Weekly https://www.jstor.org/stable/4409188 accessed 5 June 2020
[30] ‘Myopic Oversight’ (2006) 41(43/44) Economic and Political Weekly https://www.jstor.org/stable/4418848 accessed 5 June 2020
[31] Jaya Goyal and D.P Singh, ‘Academic performance of OBC students in universities: findings from three states’ (2014) 49(5) Economic and Political Weekly https://www.jstor.org/stable/24479148 accessed 5 June 2020
[32] Anuradha Chadha, ‘A case for reservation in favour of religious minorities’ (2015) SSRN: https://ssrn.com/abstract=2574651 accessed 5 June 2020
[33] Priyanka Mittal, ‘Quota bill challenged in Supreme Court, day after passage’ Livemint (New Delhi, 11 January 2019)
Aishwarya Says:
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at secondinnings.hr@gmail.com
In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.