Rethinking Reservation

Nirmalendu Bikash Rakshit

Very recently, the Parliamentary Committee on the Welfare of the Scheduled Castes and Scheduled Tribes has accused the Supreme Court of practising a sort of ‘untouchability’ by its verdicts against the policy of reservation. In the view of the Committee, the apex court and other sub-ordinate courts have actually failed to come to the rescue of the deprived sections of the society.

The report says, ‘the Judges have never been concerned about the constitutional objectives of bringing about social changes. The Committee would like the Ministry of Law and Justice to communicate its displeasure over this state of affair.’ Obviously, this report has come up when the Supreme Court has, in its various verdicts, ruled that the reservation, in any form, should not exceed 50% of the total seats or jobs. The court has, particularly, emphasised it in Indra Sawhay case, popularly known as the Mondal case. Moreover, in a recent case, the court has made it very clear that there should not be any caste-based reservation in the appointment of the Judges of the Supreme Court, because such preferential nomination has a tendency to seriously affect the standard of recruitment.

The aforesaid committee has, in fact, come down heavily on the attitude of the judiciary — particularly, that of the Supreme Court on the issue of reservation. But it must be remembered that the apex court has never questioned the efficacy of reservation as such, it has only determined the nature of limitations and criteria of reservation. It has, while accepting the need of reservation for the long-oppressed classes of people, cogently observed that, beyond a limit, reservation constitutes a gross injustice to other sections of the community. So, in its view, a limit must be imposed, otherwise it would mean a blatant  denial of the legitimate and proper opportunity to the deserving candidates of the so-called upper classes. Moreover, the Judges have also realised that reservation would by giving opportunity to inferior candidates, affect the standard of education or efficiency of service. For these reasons, in August last, the Court, by its majority-verdict, determined that in admission to Medical and Engineering Colleges, some parity must be maintained. In its view, while the minimum marks required for other candidates was 45%, it should be unfair and improper to fix it to only 20% or 30% for the SC/ST students. As the Hon'ble Sujata Manohar, J, observed on behalf of the majority; 'It is necessary in the public interest to ensure that candidates in the post-graduate level have not just passed the examination, but have profited from their studies in a manner which makes them capable of making their rich contribution and diagnosing difficult medical conditions with a certain degree of expertise’.

Obviously, there can be no controversy on this point. Engineering and medical professions are of paramount significance in national life and, hence, only the best talents should find their way to these fields. If, in the name of social justice, undeserving candidates occupy most of the seats of such colleges, it may, in future, seriously affect the interests of the people. This is why, the apex court has not agreed to invest the local authorities with a discretionary power to lower the recruitment marks for the SC/ST candidates. Similarly, the Supreme Court must be peopled by the best legal talents of the country. The apex Court has rightly felt that if caste be the only criterion in the recruitment of such highly delicate job, it is sure to jeopardize justice and fairplay in the future.

It is interesting to note that the original constitution made no room for such reservation, because the Founding Fathers laid supreme emphasis upon the principle of equality. The Preamble speaks, intealia, of ‘equality of opportunity and status’ and part III of the constitution has inserted five Articles—14, 15, 16, 17 and 18 with a view to implementing it. Particularly, Art 15 stipulates that the state shall not discriminate against any citizen on ground only of religion, caste, sex, place of birth or any of them. However, there was only one exception—clause (2) of the Article declared that ‘nothing in this Article shall prevent the state from making any special provision for women and children.’ They thought that it did not, by any means, cause discrimination or affect equality, because special provisions made under this clause would have their natural justifications.

But soon after the commencement of the constitution, clause (4) was added to Art 15 by the first amendment of the constitution. When the Madras Government sought to reserve some seats in the Medical Colleges for the SC/ST-candidates, the Supreme Court nulified it on the ground that it constituted a gross violation of the right to equality as enshrined in Art 15. Of course, the Madras Government pleaded that its reservation policy was quite in conformity with Art 46a Directive principle—which enjoined that it shall be the duty of the state to take special care for the educational and economic interests of the weaker sections of the people—particularly, those of the SC/ST. But the

Supreme Court’s verdict was quite correct and legalistic, though ultimately it failed to impress the ruling authorities. Under Article 37 of the constitution, the provisions contained in part IV (Directive Principles) shall not be enforceable by any court. But the fundamental rights are of higher sanctity, because, in case of their alleged infringement, an aggrieved person is legally entitled to move the Supreme Court or High Court under Art 32 and Art 226 respectively for a guaranteed remedy. So, the Supreme Court opined, in that case of Champakam Dorairajan Vs Madras (1950), that in the name of implementing a Directive Principle, the Government could not infringe upon a fundamental right, because it constitutionally prevailed upon the former. In its view, ‘The Directive Principles must conform to and run subsidiary to the Fundamental Right’. As an aftermath, the Government inserted clause(4) in Art 15 which states that special provisions could also be made for the advancement of the scheduled castes and tribes.

It is a cardinal fact that such people have, for centuries, suffered from social hatred and economic degradation and, that is why, they need some special protection so that, after a time, they could catch up the mainstream of the society. For this reason, the first amendment of the constitution, allowing some sort of reservation for the backward people seemed to be a necessary step towards the attainment of social justice. However, it was a provision for only ten years, but, by extension, it is still now in vogue. So, it may now be asked whether it should continue any more or whether it should extend its scope.

Significantly, the Supreme Court, on various occasions, has imposed some restrictions on this provision. For example, in the case of Pradip Pandey Vs UP (1973) it held that for the candidates of hill-area or Uttarkhand, reservations may be made, but the students of villages could not raise such a claim. Similarly, in the case of Jayasree Vs Kerala (1976), it ruled that in connection with reservation, not only caste, but also financial condition should be considered. In other words, it means that if a candidate belonging to lower caste is financially well-off, he should not claim or receive the benefit of reservation. Moreover, in its view, though special provision for the backward people is really necessary, the reservation must have a limit and it must be consistent with the professional efficiency or standard  of education or justice to others.

Obviously, these observations of the apex court are quite balanced and justified. It has already been found that caste has become the sole criterion for reservation and the question of financial need has been ignored. When a family of lower caste has flourished financially by prolonged reservation, it cannot claim such opportunity, because a family of high birth may have to starve for it. Moreover, such reservation has already created a privilleged class, aggravated group-consciousness, encounaged inequality and evoked bitterness between two classes. Some students of high castes have meanwhile committed suicide in fear of the gloomy future fraught with unemployment, poverty, uncertainty and lack of educational opportunities. When caste, and not merit, really counts, students of the upper stratum may have to pay the price for the govermental ineptness. But it entails a colossal loss of the society which is entirely irrepairable.

For these reasons, the apex court has sought to regulate the policy of reservation. Politicians are swayed by the consideration of the ‘vote-bank’ and hence, some state Governments have enhanced the quota to 70%. Such competitive reservation-policy is sure to aggravate the problem and create a regional shift of backward classes with all the ancillary complexities.

This is why, it is necessary for the Governmental authorities to proceed with the help of the beacon-light shown by the apex court. A system of reservation may continue, but it must be a restricted one which is tuned up with efficiency and fair-play in the greater interests of the nation.

Before accusing the judiciary, we must consider all this. It is however, suggested that Art 146 and Art 229 should be amended directing the Supreme Court and High Courts to apply the reservation-policy in the recruitment and promotion of their officers and staff. But these Articles have given absolute authority to the relevant chief justices in the appointment and promotion of the officers and other servicers. The makers of the constitution rightly thought that it was necessary for the maintenance of judicial integrity and independence. If now, this authority is curtailed for the reservation of some posts, it would seriously tell upon the independence and integrity of the judiciary and go against the intention of the makers. If the courts are to function freely, they must have complete control over their staff and, hence, the policy regarding their recruitment, promotion etc. should be determined by the relevant bodies without any Governmental interference. So, no Government, either Central or Local, can dictate such courts to accept its reservation-policy in matters of appointments.

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