RESERVATION WITHIN CONSTITUTIONAL BOUNDS

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THE CONTEXT: The ongoing political debate in India regarding reservation policies has intensified, with the BJP linking the Congress’ demand for a caste census to religious considerations. The opposition has expressed concerns about the BJP’s stance on reservation despite the party’s denial of any policy changes.

THE ISSUES:

• Constitutional Basis and Supreme Court Judgments on Reservation: The Indian Constitution, through Articles 15 and 16, allows affirmative action to advance socially and educationally backward classes, including OBC, SC, and ST. The Supreme Court, in the Indra Sawhney case (1992), upheld the 27% reservation for OBCs and introduced a 50% cap on total reservations, emphasizing the exclusion of the ‘creamy layer’ from OBC reservations. The Janhit Abhiyan case (2022) further upheld the constitutional validity of the EWS reservation, allowing economic criteria as a basis for reservation.
• Affirmative Action in International Context: The concept of affirmative action varies globally. In the U.S., affirmative action programs aimed at racial minorities were deemed unconstitutional by the Supreme Court in 2023. The U.K. practices voluntary ‘positive action’ to address the under-representation of disadvantaged groups. At the same time, France focuses on educational measures for low-income students, avoiding race or ethnicity-based affirmative action.
• Debate on Religion-Based Reservation: The inclusion of Muslim communities within the OBC quota in Karnataka has sparked political controversy. The Constitution prohibits discrimination based on religion, but socially and educationally backward communities from all religions can be included under the OBC/MBC category. The Congress party has proposed removing the 50% cap on reservations in its manifesto.
• Rohini Commission and Sub-Categorization: The Rohini Commission’s task to recommend sub-categorization among OBC castes aims to address the concentration of reservation benefits. Preliminary findings suggest that a small fraction of OBC castes/sub-castes have garnered the most reserved jobs and seats, leaving many communities underrepresented.
• Creamy Layer and Reservation for SC/ST: Unlike the OBC category, there is no ‘creamy layer’ exclusion for SC and ST communities. This has led to discussions on whether similar criteria should be introduced to ensure that reservation benefits reach the most marginalized within these groups.
• Extension of SC Reservation to Dalit Christians and Muslims: The government has constituted a commission led by former CJI K. G. Balakrishnan to explore extending SC reservation to Dalits who have converted to religions other than Sikhism and Buddhism, addressing the discrimination and lack of opportunities faced by these communities.

THE WAY FORWARD:

• Implementation of Sub-Categorization in Reservation: Sub-categorization should be implemented at the central level, as the model already exists in 11 states. This would ensure a more balanced distribution of opportunities among the various OBC sub-castes, potentially reducing the dominance of a few castes in reservation benefits.
• Introduction of a ‘Creamy Layer’ Concept for SC and ST: Introduce a creamy layer criterion for SC and ST categories to ensure that reservation benefits reach the most disadvantaged members of these communities. This could involve setting an income threshold like that used for the OBC creamy layer.
• Extending Reservation to Dalit Christians and Muslims: Dalit Christians and Muslims face considerable discrimination and lack of opportunities, like their counterparts in Hinduism, Sikhism, and Buddhism, who currently benefit from SC reservations. Extend SC reservation benefits to Dalit Christians and Muslims. This would require amendments to the Constitution (Scheduled Castes) Order, 1950, which currently limits SC status to Hindus, Sikhs, and Buddhists.
• Review and Increase of Reservation Caps Where Necessary: Conduct a comprehensive review of the reservation caps, possibly increasing them in specific contexts where empirical data justifies such a move. This should be done carefully to maintain a balance with the general merit-based opportunities and uphold the principle of equality.
• Regular Monitoring and Dynamic Adjustment of Reservation Policies: Pro Establish a permanent commission to monitor the outcomes of reservation policies regularly and recommend adjustments based on current data. This commission could oversee the implementation of sub-categorization, the creamy layer criteria, and the extension of reservations to new groups, ensuring that the policies adapt to changing needs and continue to serve their purpose of social justice.

THE CONCLUSION:

The reservation debate in India is a complex issue involving historical injustices and the need for social justice. As the country grapples with these challenges, thoughtful deliberation and policymaking are crucial to ensure that reservation benefits reach the most marginalized communities while maintaining the constitutional guarantee of equality.

UPSC PAST YEAR QUESTION:

Q.1 Whether National Commission for Scheduled Castes (NCSCJ) can enforce the implementation of constitutional reservation for the Scheduled Castes in the religious minority institutions? Examine. 2018

MAINS PRACTICE QUESTION:

Q.1 Critically examine the judiciary’s role in shaping the reservation policies in India post-Indra Sawhney judgment. How have various Supreme Court rulings influenced the political and social landscape of reservations in public employment and education?

SOURCE:

https://www.thehindu.com/news/national/reservation-within-constitutional-bounds/article68157106.ece