(This article is Part I of a three-part series)
Latief U Zaman Deva*
Pandit Nehru’s “tryst,” on the stroke of midnight between August 14 and 15, 1947, heralded the beginning of modern India. Here, the individual potential of her citizens would face no barriers in expanding in all directions, both within and beyond the shores of the country.
Faced with the reality of the abysmal and disrespectful life and deplorable living conditions of the Scheduled Castes and Tribes, and their societal ostracism, coupled with the vehemence with which the members of the Constituent Assembly pleaded for reservations for them, the acknowledged man of the twentieth century had to acquiesce to an affirmative action plan. This plan took the form of reservations in government services, Lok Sabha, and State Legislative Assemblies.
Its inevitability also lay in the Government of India Act 1935, which mandated representation on a communal basis between the two major communities. Under the subterfuge of social justice, it included special dispensations for marginalised communities including SCs, women, and labourers.
Legal Framework
Articles 15(4) & 16(4) of the Constitution of India govern reservations for SCs, STs, and other socially & educationally backward classes among Indian citizens. Articles 15(3) & (4) form two exceptions to the guarantees provided under Articles 15(1) & (2) against every form of discrimination by the State based on only religion, caste, race, or sex.
Firstly, the State has been enabled to make special provisions to benefit women and children. Secondly, the same benevolent demeanour extended for the advancement of SCs, STs, and socially and educationally backward classes notwithstanding the provisions of Article 29(2).
Article 335 makes a special provision for considering the claims of STs & SCs, thereby acting as an inalienable shield for them against the arbitrariness of the State. Article 16(4) specifically empowers the State to make provisions for the reservation of appointments or posts in favour of backward classes who, in the opinion of the State, based on quantifiable data generated in surveys conducted by relevant state personnel, aren’t adequately represented in the state services.
Under Article 366(24) & (25), Scheduled Castes & Scheduled Tribes have been respectively defined. It is the President who, under Article 341 by public notification, specifies castes, races, tribes, or parts of the respective three categories as “Scheduled Castes” and under Article 342 as “Scheduled Tribes.” The SCs have 15% and STs 7.5% reservations in central services and other institutions under the control of the Union Government at the national level and in the Lok Sabha, their share is proportionate to their respective population.
Backward Classes
Under the Government of India Act of 1935, the electoral rights were exercisable by not more than 12% of the population of British India. This propelled previously dormant segments of the Indian political landscape into political activism, who after independence had greater expectations for their amelioration by getting rid of poverty and assured dignity of lives & share in government jobs.
In tandem with constitutionally guaranteed reservations for SCs & STs, these people, equally at the receiving end based on socio-economic indicators, are galvanized for their share of national resources and employment opportunities.
This prompted the government to set up the first Backward Classes Commission in 1953 (Kalelkar Commission), which submitted its report in 1955 but couldn’t be implemented due to the identification of a huge magnitude of castes as backward and out of them, an equally large number of castes as most backward among the backward classes.
To dilute the political, social, and economic aspirations of backward classes, the concept of a casteless society was disseminated without a roadmap for their all-around and holistic development and economic growth.
In the sixties and seventies, the socialists, including leaders from backward classes in Jan Sangh (the precursor of BJP), rallied around the fulcrum of social justice. This resulted in the establishment of the Mandal Commission (MC) in 1979 (2nd Backward Classes Commission), which submitted its report in December 1980 but it remained pending for want of implementation until 1990 when the V P Singh-led coalition government accepted the report.
The eleven-point social, economic, and educational indicators spelled out by the MC for determining the entitlement of a caste or class in a state or district to be specified as backward are as relevant in today’s context as they were during the 1979 – 1980 period.
This can be appreciated by referring to the planks adopted by the MC for declaring castes or classes as backward provided they had scored out of 11 indices 11 viz state or district averages. These included manual labour for livelihood, kacha residential houses, share in government jobs, literacy rates, the share of matriculates and graduates, male and female marriage ages in rural and urban areas, participation of women in works, number of children out of schools, student dropouts, an average value of family assets, and incidence of household consumption loans.
The report accepted by the government covers 54.4% of the population of the country as members of the backward classes but the percentage of reservation was halved by restricting it to 27% only.
This was a conscious decision taken by the Commission and accepted by the government without introducing any modifications leading to the overall percentage of reservations capped at 50%. The principle of earmarking percentage for reservations proportionate to the population cleared decks for reducing the percentage of statutory reservations for purposes of not exceeding the 50% moratorium fixed by the Apex Court in myriad cases and an acknowledgment of the difference between SCs & STs on one side of the spectrum and backward classes and others on its other side.
The total reservations in the Government of India for SCs, STs and OBCs now is 49.5%. By the 103rd Constitutional Amendment Act 2019, 10% reservations for Economically Weaker Sections from out of the OM category have been made, reducing the quota to 40.5% for general category candidates. 4% reservation for persons with disabilities and 10 to 20% for Ex-servicemen is horizontal, cutting across all categories.
Practically, the percentage of reservations has risen to 59.5%, apart from horizontal for physically challenged and Ex-servicemen (intra each category depending upon the roaster points).
Judicial Interventions
A nine-judge Constitutional Bench of the Supreme Court in Indra Sawhney & Others Vs Union of India (1992) upheld 27% reservation for OBCs but introduced the concept of the “Creamy Layer” to disable the affluent sections from OBCs from taking benefit of reservations, reiterated & capped the 50% limit on reservations, and laid down the law disallowing reservations in promotions.
The embargo on reservations in promotions was undone through the Constitution Amendment Act 1995, which was also held valid in M Nagaraj Vs Union of India (2006). The 10% reservations for EWSs brought in under the 103rd Constitutional Amendment Act 2019 were also upheld by the Supreme Court on November 7, 2022, in Janhit Abhiyaan Vs Union of India.
(*The author is a retired IAS officer, former Chairman of the J&K Public Service Commission, and Advocate at Srinagar.)
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