Affirmative Action: Reservation Policy in India

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Affirmative Action is about empowering people having faced historical injustice, oppression, inequality

Need for Re-examination of Reservation Policy

  • earlier, discourse originated in deep sense of unfairness of social system, today about contemporary unfair devt. policies
  • seen as remedy for adverse effects of ill-thought out devt. policies, failures of govt.
    • away from constitutional logic behind enabling clauses like Art. 14,16
  • act as 'reverse discrimination' against upper castes
  • helps political parties avoid targeting root cause of problem, just subscribe to consensus over economic policies

Solutions

  • expand opportunities for all esp. young people out of agro-sector thru govt. schemes
  • govt. to make critical assessment of affirmative action considering economic, political and social well-being of community
  • progressive steps to ensure that poorer among backward comm. get reservation benefits
  • gradually phase out policy when it has served the purpose

Reservation in Promotions

2006 M. Nagaraj SC Judgement: Govt. can introduce a quota in promotion for SC/ST employees unless they prove the particular community

  • backward
  • inadequately represented
  • effect on overall admin. efficiency


SC verdict: Jarnail Singh v. Lachhmi Narrain Gupta

Creamy layer in promotions upheld to exclude people who have come out of backwardness

  • won't tamper Presidential lists under Art. 341, 342
  • other two condn. of Nagaraj judgments upheld


Constitutional Provisions

  • 77th amendment- Art. 16(4A) allows reservations in promotions for untouchable castes, tribes only, not for OBC
    • markers of identity of SCs is historic disadvantage (Indra Sawhney v. UoI), question of proving backwardness by quantifiable data doesn't arise
  • 81st amendment- vacancies not to apply to backlogs
  • 85th amendment- consequential seniority
Arguments
For Against
  • false notion of efficiency
    • concept stems from conservative understanding of merit
    • never articulated in any SC verdicts
  • skewed SC/ST representation at senior levels -only 4 SC/ST at level of secretaries
    • in Group A levels where promotion is only way up
  • large vacancies -no definition of 'backwardness' for which data to be collected
    • appointments struck down
  • historical disadvantage- nothing to be proven
  • not FR- only enabling provision
  • employment doesn't ensure end of social discrimination- not right yardstick
  • hurts eff. in technical fields like nuclear research, space program etc.
  • cornering of benefits as in reservation by some particular castes, tribes
  • backwardness of SC/ST employees removed as they join govt. services

High Order Thinking Skills (HOTS)

  • One Family, One reservation
  • One time catch up clause- B K Pavitra vs UoI

Way Forward

  • The Constitution envisages not just a formal equality of opportunity but also the achievement of substantive equality.
  • Meritorious candidates is not only one who succeeds but also who fulfils constitutional mandate

Economically Weaker Section (EWS) Quota

  • 124th Constitution Amendment Bill to amend Art.15, Art.16; Constitution (103rd Amendment) Act, 2019
  • Indra Sawhney Case- backward class cannot be determined only and exclusively with reference to economic criterion; also 50% formula
  • 50% ceiling (not sacrosanct) represented balance b/w two diff. ideas-
    • legitimacy of institutions is measured entirely by their representativeness
    • identity should be irrelevant in determining whom jobs to go
  • From Poona Pact (1932) to Constituent Assembly debates, reservation was talked about in the context of social backwardness of classes
  • reservation is not a right but, if granted, it will not be considered a violation of the right to equality due to Art. 16(4)
  • no provision for any commission for economically backward classes
  • 93rd Amendment Act enabled 27% OBC reservation in both public, pvt. insti but Central Educational Institutes Amendment Act, 2006 only mandated reservation in centrally-funded instis

Legal Backing

  • Art. 46 (DPSP)- govt. to promote educational & economic interests of weaker sections
  • Art. 16(4) permits reservation for backward class if inadequately represented in services
  • Art. 15(6) allows govt. to carve out reservation for EWS in HEIs (public+pvt.)+ special measures not limited to reservation
  • Art. 16(6) provides for quota for economically deprived sections (excluding SC/ST/OBCs, criteria to be defined by states) in initial appointment in govt. services
Arguments
For Against
  • need for new deprivation criteria due to weakening links b/w caste and class
    • Ram Singh vs UoI- SC held that social deficiencies may exist beyond caste
  • increased dissatisfaction among groups w/ similar economic status but no reservations
  • help decrease stigma associated w/ reservations among upper caste
  • against equality norm- M. Nagaraj vs UoI (2006) ruled that equality is basic struct, 50% ceiling is required to ensure the same
  • no quantifiable data to prove that lower income groups are inadequately represented
  • parity created b/w OBCs, EWS due to same creamy layer limit
  • implementation issues- identification of beneficiaries due to misrepresentation of income
  • faulty 10% limit- no correlation w/ population unlike OBCs
  • can open up pandora box of demands from other groups- trivalizes reservations
  • reservations become tool of populist actions than affirmative action
  • Sinho Commission 2010- rejected economic basis as criterion for affirmative action
  • no discussion on bill, no parliamentary scrutiny thru committees

Way Forward

  • need to create enabling env. for formalization, creation of better jobs in pvt. sector
  • creamy layer limit may be extended to SC/STs as well w/ due consideration
  • need independent, transparent, non-intrusive verification methods for income discovery
  • adequate insti measures to check populism in granting quotas

123rd Constitutional Amendment Bill: NCBC

Constitutional status to NCBC on par w/ NCSC, NCST.

  • Prez may specify SEBCs in states, UTs in consultation w/ gov under new Art. 342-A
  • inserts Art. 338B to provide for NCBC, its comp., mandate, func. etc.

Indra Sawhney (Mandal Commission) Case: SC directed establishment of NCBC as statutory body. NCBC Act, 1993 passed for setting up NCBC which has been examining cases for inclusion in BC lists for Central govt. since then.


National Commission for Backward Classes (NCBC): investigates and monitors how safeguards provided under constitution, other laws are being implemented, probe complaints regarding violation of rights.

  • Presents annual reports to Prez on working of safeguards for BCs, which is to table in Parliament, state legislative assemblies of concerned states
  • Have powers of civil court while investigating or inquiring into any complaints
    • summoning people, examining them on oath
    • requiring prod. of any doc or public record, receiving evidence

Concerns:

  • Undermine federalism, usurping power of state govt. to prepare their own BC lists
  • The power to hear complaints of OBCs, protect their interests remained with NCSC.

Local Quotas

News

  • AP 1st state to offer 75% reservation to locals in pvt. sector
  • 100% Kannadigas reservation

Reasons Behind

  • agrarian distress
  • lack of jobs
  • poor remuneration
  • displacement of landowners
  • lack of participation of all sections- dalits under-represented
  • perception of inadequate central devolution


Analysis

  • won't pass legal scrutiny- states not empowered under Art. 16
  • politically motivated move
  • arm-twisting pvt. sector into forcible hirings irresp of merit/qualifications
  • imply locals are incapable of finding jobs on merit
  • can trigger chain reaction- other states to follow similar populist policies even for white collar which demand productivity
  • violates Indra Sawhney 50% limit
  • moving of biz outside- economic loss
  • informalisation of labor
  • previous such efforts in KA, MH not successful


Kannadigas Pvt. Sector Reservations

  • Sarojini Mahishi report recommend granting primacy for Kannadigas in pvt. sector jobs
    • 100% reservation in Gr-C,D jobs in PSEs, pvt. comp. barring senior/skilled positions
  • G/o KA amending Industrial Employment Rules 1961 due to huge influx of migrants
  • Real jobs are not created by law but by industries coming in the region
  • need for enabling env.
    • simple investor-friendly policies
    • skill devt.
    • EoDB

Way Forward

  • focus on core issues of unemployment, industrialization
  • such policies impact EoDB due to uncertainty
  • promote labor-intensive industry
  • promote entrepreneurship
  • need to move towards economy based reservation than further expansion

Sub-categorization of OBCs

  • Justice G Rohini commission constituted w/ ToR-
    • to examine extent of inequitable dist. of benefits of reservation among castes included in broad category of OBCs in Central List
    • to work out mechanism, criteria, norms, params in scientific approach for the same
    • take up exercise of identifying resp. castes/comm.; classify them in resp. sub-cat.
  • SC in Indra Sawhney vs. UoI observed that sub-categorization by states isn't permissible
  • 9 states already sub-categorized- HR, AP, TL, TN, JH, WB, BH, MH, KA, Puducherry
  • will ensure that more backward among OBCs comm. can also access benefits of reservation

Issues:

  • over-emphasis on idea of reservation as solution to socio-economic problems
  • closure of public debate on reservation- no review of reservation policy post Mandal era
    • recent EWS quota passed w/out any nuanced debate
  • expansion of reservation regime in many directions deligitimized original idea behind it
    • totally misplace idea to address economic infirmity
    • reservation not a remedy for traditional social ills anymore but routine policy tool to arrange politico-administrative power
  • Not injustice perpetrated by caste system, but caste in itself has emerged as primary social group for which demands are made
    • such public display leads to identity strengthening than advancement
    • entire discourse influenced by single-caste considerations
  • absence of imagination and innovation in policy making- reservation only policy
    • quotas for poor to hide policy failures of govt.

HOTs:

  • Merit is a social construct, another name for being born into advantage
  • If creamy layer is decided on economic basis, why not extend reservations to BPLs too?