New Delhi: The “Politicisation of Caste & Religion” legacy can be traced to British Indian Empire. From late nineteenth and early twentieth century the Britishers started associating Indians with the legislative process. In 1909, with the Morley-Minto Reforms the Britishers, for the first time announced “Separate Electorates” for the Muslims. It meant that in the Muslim dominated areas only Muslim people will vote for Muslim candidates and no one else in that area can vote.
This led many leaders from the “Depressed Classes” to raise their voice demanding separate electorates for their community too. It was felt that depressed communities have been denied their legitimate rights and social equality and thus now requires affirmative action.
Their demand was granted by the Britisher’s based on the recommendations of Lothian Committee Report. On 16th Aug, 1932 in the MacDonald Communal Award “separate electorates” were extended to depressed classes. Not only this, through its policy of “protective discrimination” British Government tried to ensure educational facilities as well as reservation in jobs for depressed classes.
In MacDonald Award the depressed classes were given “double vote”, i.e. depressed classes were to be voted along with caste Hindus in the general constituencies and also an extra vote in special Depressed Classes constituencies.
However this, step of British Government was denounced by everyone in India except for representatives from depressed communities. According to Indian Nationalists this will create a rift amongst people belonging to the same religion. So, Gandhji, called for a fast-unto-death, till this provision is not revoked but Dr. Ambedkar representing the depressed classes wanted this provision to stay. Thus, a pact was signed between Gandhiji and Dr. Ambedkar known as “Poona Pact” that tried to reconcile the differences between caste Hindus and giving the depressed classes their rights.
In 1942, Ambedkar as member of the Viceroy’s Executive Council submitted a memorandum, “On the Grievances of the Scheduled Castes’ detailing their grievances and demanding reservation in public services, scholarships and stipends for study within the country and abroad, a share in contracts and so on.” This was duly referred to the Secretary of State, who accepted the recommendations. 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 1950 the Constitution of India came into force which contains Article 46 dealing with interests of the weaker sections of the society. According to this state shall promote with special care education and economic interests of weaker sections, in particular scheduled castes and scheduled tribes and shall protect them from social injustice and all forms of exploitation. Initially only members of SC professing Hinduism and 4 castes amongst Sikhs (Kabirpanthis, Ramdassias, Sikligars and Mazhbis) were included in the list. In 1956 and 1990 all Sikhs and SC Buddhists respectively were included amongst SC’s. However, from the starting all ST’s were included under it.
Reservations in public services and educational institutions were an affirmative action provided to members who have earlier been denied their rights. This provision of the Constitution antagonized the section of society who had been enjoying monopoly. So, a case was filed in the Madras High Court (State of Madras vs. Champakam Dorairajan, April, 1951).
In the state of Madras, seats in the Medical and Engineering Colleges (maintained by the State) used to be filled on a Communal Government Order (G.O.). Govt. allotted specific number of seats to Brahmins, Non-Brahmins (Hindus), Backward Hindus, Harijans, Anglo Indians and Indian Christians, and Muslims.
This G.O. was challenged through two separate writ petitions (before the High court), where petitioners claimed that the Communal G.O. breached their fundamental right to get admission in the Educational Institutions maintained by the State [Article 15(1) and Article 29(2) of the Constitution of India]. Petitions were allowed.
So, the State of Madras went into an appeal to the Supreme Court of India, challenging judgment of the High Court. Advocate General of Madras, argued that provisions of Article 46 (DPSP that urges State to promote educational and economic interests of the weaker sections of the society) override the provisions of Article 29 (2) [No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds of religion, race, caste, language or any of them].
The Supreme Court, however rejected the arguments of the State of Madras and dismissed its appeal and observed that the Communal G.O., was in clear violation of Article 29 (2) [No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of the state funds on grounds only of religion, race, caste language or any of them], and thus is void under Article 13.
To nullify the effect of the Champakam Dorairajan Judgment, an amendment called 1st Amendment Act, 1951 was introduced in the Constitution and clause (4) was added to Article 15, which provided that: “Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the SC’s and the ST’s.”
In 1953, the first Backward Classes Commission was set up in 1953 under the Chairmanship of Kaka Kalelkar. It was set up to ensure that more deserving people belonging to the Extremely Backward Classes reap the benefits of reservation. However its recommendations were never implemented.
In 1979, the Second Backward Classes Commission or Socially and Educationally Backward Classes Commssion was set up by Janata Government under Prime Ministership of Morarji Desai, with a mandate to “identify the socially or educationally backward classes”. It was headed by B.P. Mandal, an Indian Parliamentarian, to consider reservation based on 11 indicators, revealing social, economic and educational backwardness.
Based on this report it was revealed that 52% of the population belongs to OBC according to 1931 Census. Thus, Commission’s report recommended giving 27% reservation in Central government and public sector undertakings, thus taking total reservation for SC, ST and OBC to 49%.
In 1982, it was specified that 15% and 7.5% of vacancies in public sector and government-aided educational institutes should be reserved for the SC and ST candidates, respectively.
In 1990, the V.P. Singh Government stirred controversy by announcing that it will implement partially the recommendations of the Mandal Commission report. The Government declared that OBC would get 27% reservation in jobs in Central Government Services and Public Sector Units.
Decision to implement Mandal Commission Report led to widespread protests in the country. The issue was then raised in the Supreme Court. The case is known as Indira Sawhney Case (1992).
In this case, the SC observed that creamy layer must be eliminated from the Backward Classes. For this they give a creamy layer criterion which was 1 lakh in 1993, revised to 2.5 lakh in 2004, Rs.4.5 lakh in 2008, Rs.6 lakh in 2013 and Rs.8 lakh in Sept, 2017.
Also SC upheld the 27% reservation for the OBCs but this should not cross the 50% ceiling. This meant that OBC received 27% share in the reservation pie while Dalits and Adivasis together got 22.5%, bringing the total to 49.5%. Carry forward rule was also declared valid but subject to 50% ceiling.
Here SC also observed that reservation of appointments or posts under Article 16(4) [State can make provision for reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State] of the Constitution is confined to initial appointment and cannot extend to reservation in the matter of promotion.
This ruling of the SC adversely affected the interests of SCs and STs since they have been enjoying the facility of reservation in promotion since 1955. To protect the interests of SCs and STs the Government continued the existing policy of reservation in promotions for the SCs and STs. For this they amended the Article 16 of the Constitution and inserted clause (4A), through 77th Constitutional Amendment Act, 1995.
This clause stated that “State can make provisions for reservation in matters of promotion in the services under the State in favor of SCs and STs which, in the opinion of the state are not adequately represented in the services.”
After this 81st Constitutional Amendment Act, 2000 inserted clause (4B) to the Article 16 which enabled the state to fill the unfilled vacancies of a year reserved for SCs/STs in the succeeding year, thus nullifying the ceiling of 50% reservation on total number of vacancies of that year.
Thus, by the 93rd Constitutional Amendment Act, 2005, the Government decided to reserve nearly 27% of seats for students from the OBC segment in institutes of higher learning in India. It added clause (5) to Article 15 which stated “nothing shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the SCs or the STs.
In 2006 the Supreme Court in M. Nagaraj vs. Union of India 2006 case uphold the constitutional validity of Art 16(4A) but also added that it should satisfy 3 constitutional requirements: SC and ST community is socially and educationally backward, not adequately represented in Public employment and this will not affect overall efficiency in the administration.
However, this contention of Supreme Court was reversed in 2018, Jarnail Singh vs. Lachhmi Narain Gupta Case, 2018. Here the SC held that reservation in promotion does not require state to collect quantifiable data on the backwardness of the SCs and STs.
In 2008, the SC of India upheld the law providing 27% reservation to OBCs in educational institutions supported by central government. Recently, the 103rd Constitutional Amendment Act, 2019 has provided 10% reservation in government jobs and educational institutions for the “economically backward” in the unreserved category.
Current Status of Reservations at the Centre and in the States:
|Category||Reservation in Percentage (%)|
|Other Backward Classes||27|
|Economically Weaker Sections (EWS)||10|
|Persons with Benchmark Disabilities||4|
So, effectively currently in India the percentage of reserved seats has increased above 60%. Thus, this leaves effectively 40% of the seats for the leftover majority population. It is not only the centre but States are also blatantly violating the 50% ceiling on reservations.
Is the Reservation reaching the Intended Beneficiaries?
In October 2017, a Commission known as “Rohini Commission” was set up by the President under Article 340 of the Indian Constitution to sub-categorise OBCs so that benefits reach all.
This committee has been set up as it is believed that handful of communities are getting major share in the reservations. According to the excerpts of the committee that are in public domain it can be said that:
According to 2018 data, just 10 OBC communities are holding 25% of reserved central jobs and institutional seats. As per reports as many as 983 or 37% of the 2600 communities have zero representation in jobs and institutes and only 2.68% reservation used by 994 castes.