SIXTY- ONE YEARS OF RESERVATION- AN ASSESSMENT -

PRESENTED BY

PRAVEEN KUMARB.B.A. LL.B. StudentKIIT SCHOOL OF LAW

KIIT UNIVERSITY

MAUYRIB.B.A. LL.B. STUDENTKIIT SCHOOL OF LAW

KIIT UNIVERSITY

GLIMPSES OF THE FURORE OVER RESERVATIONS

ABANDON CASTE ………………….. RESPECT MERIT

A STUDENT ATTEMPTS SELF IM

MOLATION WHILE PROTESTING

MEDICAL STUDENTS PROTESTING AGAINST THE INCREASING QUOTAS

Reservation…. An Antithesis to equality.

Reservation…. from a temporary support to permanent crutches

Reservation…. From exception to Fundamental Right

SIXTY- ONE YEARS OF AFFIRMATIVE ACTION

- AN ASSESSMENT -

QUESTIONS WHICH ARISE… What is the true mandate provided by the Constitution?

How long is it justified to provide benefit for oppression that took place centuries ago?

To what extent can merit be ignored in the process?

How long can the violation of right to equality of the members of forward communities due to reverse discrimination be ignored in this process?

Whether Reservation has helped in uplifting the Backward classes?

HISTORICAL BACKGROUND

Reservation for backward classes was prevalent since 1902 when the first GO for the welfare of depressed classes in India was passed.

India was a country with a very rigid caste based hierarchical structure where the higher castes enjoyed most of the benefits while the lower castes were looked down upon by the higher castes.

Indisputable mutuality between social hierarchy and economic position.

Fusion of social status and economic power.

In 1947, majority of the population was backward which were thereafter classified as SC, ST and OBC.

If poverty be the cause of backwardness… caste was the index of backwardness.

WHEN THE CONSTITUTION WAS FRAMED….

Framers took forward the interest of the Backward Classes by inserting several provisions to promote equality.

Article 46 : to promote educational and economic interests of Scheduled Castes (SC), Scheduled Tribes (ST) and other weaker sections of society.

Article 14 : to provide equality before law and equal protection of laws.

Article 15(3) : enabling provision to provide for special provisions in case of women and children.

Article 16(4) : to provide for reservations of appointments or posts in favor of backward class of citizens if they are not adequately represented in services under the State.

IDEA AND EXPLANATION OF THE RESERVATION POLICY

In the Indian scenario, it resembles the story of “The Wolf and the Lamb” in Aesops Fables.“If you were not born at that time”, said the Wolf, “it must have been

your father”, and proceeded to gobble up the Lamb. The fundamental law is forgotten that … “none should be punished for the

supposed or actual sins of the ancestors.”

A QUESTION TO WHICH THERE IS NO ANSWER

For how long the sins (i.e. the discrimination practised by them) of the generations of the forefathers in the higher castes should be expiated by the future

generations.

Sixty one years have passed but still officially there is not even a single community that has crossed the barriers of backwardness with all the aid provided by the policies under Affirmative Action.

JUDICIAL INTERPRETATION

M.R. Balaji v. State of Mysore, AIR 1963 SC 649.

T. Devdasan v. Union of India, AIR 1964 SC 179.

State of Kerala v. N.M. Thomas, AIR 1976 SC 490.

A.B.S.K. Sangh v. Union of India, AIR 1981 SC 298.

M.Nagaraj v. Union of India, (2006)8 SCC 212.

RESERVATION FOR WHOM?

Anjan Kumar v. Union of India (2006)3 SCC 257

In this case the Court advances two parallel grounds of reasoning-

That reservation is given to a person because of the disadvantages he has faced in life.

That he is given the benefits for the disadvantages suffered by the community to which he belongs.

The two aforementioned reasons have completely different repercussions. While Affirmative Action for the first group is justified, in the second case no affirmative action is required as the person was himself under no disability.

WHERE JUDICIARY ERRED…

PRESENT SCENARIO IN INDIA HAS BEEN IGNORED

Whereas it is true that 60 years ago almost all the families of certain communities were backward but presently backwardness and poverty are not restricted to

communities.

INTENTION OF FRAMERS HAS BEEN NEGLECTED

Article 16(4) provides for reservation for any backward class of citizens. For SC and ST reservations are provided under Part XVI because framers of the Constitution

envisaged a reservation in representation for these communities.

EXPRESS MANDATE OF THE CONSTITUTION HAS BEEN IGNORED

Mandate provided by express words of Constitution through Article 16,46 and 335 has been ignored.

EQUALITY CANNOT BE ACHIEVED BY COMPROMISING WITH MERIT

Any compromise in merit by providing reservations in employment or for that matter even in places of higher education can never lead to equality because of the

inherent assumption that the communities are backward and cannot possess merit equivalent to other communities.

CONSEQUENCE OF SUCH AN INTERPRETATION

Creation of a group which was backward in ancient days, is treated as backward now, with an assumption that they will always remain backward.

This scenario was never anticipated by the founding fathers of our Constitution and is completely against the cherished principle of equality.

UNNECESSARY CONSEQUENCES OF RESERVATION

RESERVATION…FROM A TEMPORARY SUPPORT TO PERMANENT CRUTCHES

Reservation policy which was designed to be a temporary support has turned out to be permanent crutches and is the biggest obstacle in achieving the

cherished goal of equality.

HOW FAR IS REVERSE DISCRIMINATION JUSTIFIED?

There are people from other communities who are deprived of jobs despite of the merit and qualifications they possess. They might not be economically or socially well off. In such a scenario, what is the fate of the Constitutional

guarantees provided to them. How long can they be deprived of their rights in order to promote the interests of other communities.

STRENGTHENING OF CASTE SYSTEM

Caste disparities which were forgotten in the struggle for Independence came back with a bang due to reservation policy, judgments of the Supreme Court and the reports of the various Commissions This policy has strengthened the caste system instead of removing the inequalities prevalent in the society due

to the caste system.

STRIVE TO BE DECLARED AS BACKWARD

People strive to be declared as backward just to avail the benefits of the reservation policies. So, instead of promoting equality it has started a new

battle between various communities to be declared as backward and to avail the endless benefits which follow.

CONCLUSION

Reservation is not a complete or even a real solution of the problems of Scheduled Castes or the Backward Classes. What is more important is their economic and educational upliftment which can be achieved only by increasing merit and not merely by providing for reservations.

Without merit which comes in the form of education they are not in a position to utilize the opportunity being given to them under the scheme of affirmative action.

Reservation should be provided when even after equal merit they are unable to enter into services due to some kind of discrimination or disability.

Reservation as a means of affirmative action has outlived its importance as the goals framed during the debates in Constituent Assembly have still not been achieved even after 64 years of independence.

Government needs to formulate an effective policy to achieve the desired goal of “equality of all citizens” in society which can be done not by providing illusionary equality but equality which will be achieved by increasing merit and enabling all the citizens to stand on the same field and compete.

To achieve this aim there is no other way but to increase the merit and efficacy of “any backward class of citizen” in India. Once this equality of merit and competency is achieved, the cherished goal of equality in all other walks of life be it educational, economical or political will follow.

Reservation is therefore an antithesis to the principle of equality and can never promote equality. This is substantiated by assessing the Affirmative Action programme in India for the last 60 years.

THANK YOU