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Reservation in Jobs: A Biased Starting Line?

Reservation in Jobs: A Biased Starting Line?

By Shruti Saxena

Reservation in government jobs and public undertakings for the backward classes of the Indian society was introduced by the Constitution makers to undo the effect of atrocities and injustice done to these sections of society over a long period of time.

The policy of reservation was originally to be implemented only for a limited period. But, over the years, due to prevalent social and political considerations and possible ramifications, this practice of positive discrimination continues to remain. In fact, reservation has not only continued, but increased over the years, causing understandable concern and heartburning amongst the unreserved general category candidates.

Various amendments have been made in the Indian Constitution over time to safeguard the interests of the various weaker sections of the society, most of which have also undergone judicial scrutiny. The provision for 10% reservation for the Economically Weaker Section (EWS) of the society, in addition to the existing reservation for Scheduled Castes(SCs), Scheduled Tribes(STs) and Other Backward Classes(OBCs), making use of the Constitution (103rd Amendment) Act, 2019, has again fueled up the debate of justifiability of reservation. Questions have been raised both on the rationale as well as quantum of reservation and spotlight again shifted on the tenets established under the famous Mandal Commission case, setting the upper limit of 50% on reservation of seats in government jobs and introducing the creamy layer concept.

Without questioning the need for measures to be taken to undo injustice done to sections of society in the past and for providing a level playing field to the deprived, it cannot be denied that the legislature has time and again tried to have its way to take these populist decisions, including importantly constitutional amendments, favouring the SCs, STs, OBCs, and now EWS as well, who form a large vote bank.

Notwithstanding the constitutional provisions and the continuing efforts of the government, the beneficiaries have not reached a level where positive discrimination for them may not be required. According to the data compiled by an online website, over 29 lakh posts are lying vacant with the central and state governments. Various important and high level government jobs such as IAS (Indian administrative services), IPS (Indian police Services) and IFS (Indian forest services) have 1449, 970 and 30 vacancies respectively.[1] The ‘carry forward rule’ applied to fill up the reserved seats over the years has worsened the situation and has become a concern for the State as it hinders the development of the nation.

Before pondering on this issue from a jurisprudential perspective and suggesting possible alternative solutions, a brief overview of related constitutional provisions and subsequent amendments and judiciary’s decisions in the matter are discussed below.

Constitutional Provisions and Judicial Opinion

The concept of positive discrimination in the Indian constitution finds its roots paradoxically in Articles relating to equality viz. Articles 15 and 16 and also Part XVI of the Indian Constitution and is carved out to its present shape by various amendments and judicial precedents. However, Article 46 enjoins the State to promote with special care the educational and economic interests of the weaker sections.

Constitutional amendments regarding reservation are not few and date back to the very first amendment of the Indian constitution. Clause (4) of Article 15, added in 1951 by the 1st amendment of the Indian Constitution, was made to overcome the decision given by the Supreme Court in the case of State of Madras v. Champakam Dorairajan (AIR 1951 SC 226) wherein it was held that “the Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of fundamental rights”[2]. The clause, overruling that interpretation, enables the State to make special provisions for the advancement of socially and educationally backward classes (SEBCs) of citizens or for the SCs and STs.

The amendment left it open as to what could be the quantum of reservation. A satisfactory answer to it can be seen in the decision given in the famous Mandal Commission case[3]. In this case, upholding the validity of a total of 49.5% reservation (22.5% for SCs and STs and 27% for SEBCs), the court held that barring any extraordinary situations, reservation should not exceed 50%.[4] It was observed that reservation, being an extreme form of protective measure or affirmative action, should be confined to minority of seats. Even though the constitution does not lay down any bar but the constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50%[5].

This resulted in the 77th amendment of the Constitution in 1995, inserting clause (4A) in Article 16. The clause enables the State to make provisions for reservation in matters of promotion to any class or classes of posts under State services in favour of SCs and STs.

However, in Union of India v. Virpal Singh Chauhan[6] and Ajit Singh (II) v. State of Punjab[7], it was held that reserved category promotees could not count their seniority in the promoted category from the date of their continuous officiating in the promoted post vis-à-vis the general category candidates who were senior to them in lower category and who were later promoted.[8] In order to render these decisions ineffective, 85th amendment, in 2001, introduced the words “with consequent seniority” in the clause.

By way of 81st amendment in the year 2000, clause (4B) had also been added to Article 16 which introduced the ‘carry forward rule’ in order to widen the scope for filling up the backlog vacancies which was narrowed down by the decision given in the Mandal Commission case by placing the upper limit of reservation as 50%. The rule envisages that the State shall not be prevented by Article 16 to consider any reserved unfilled vacancies of the year as a separate class of vacancies to be filled up in any succeeding year(s) and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year.

In the case of S. Vinod Kumar v. Union of India[9], government instructions providing for lower qualifying marks/ lesser standard of qualification in matter of promotion for SC/ST candidates was held to be not permissible.[10] This formed the background for 82nd amendment whereby the Parliament restored relaxations and concessions in promotion.

The recent 103rd amendment of 2019 resulted in the insertion of a sixth clause to each of Articles 15 and 16 in order to realise the objective of Article 46. These two clauses enable the State to make reservation for EWS in educational institutions and in appointments respectively, subject to a maximum of ten per cent.

The reservation would be for all those who are not covered in existing quotas and have a family income below ₹8 lakh a year or agricultural land below 5 acres. Those who have a house above 1,000 square feet or a 100-yard plot or above in a notified municipal area or a 200-yard plot or above in a non-notified municipal area are not eligible.[11]

This poses a serious question regarding fair representation of the left out non-reserved category persons. Also, seeing the past trends of reservation in promotions and direct recruitment as well as the efficacy of the ‘carry forward rule’ in government jobs, a reasonable doubt arises as to the merits of the current policy as it is likely to create situations when all the vacancies in a year may be open to only reserved category candidates and the unreserved ones will not have any chance of getting a government job.

Jurisprudential Perspective

If this issue is to be observed using the lens of jurisprudence, one may infer that the picture leaves certain questions unanswered. That the discrimination which was compensatory in nature, for providing benefits to the underprivileged sections of the society for past injustice, is depriving the so called privileged ones of not only an equal but a fair opportunity. The burden of providing benefits to the former seems to be far more weighing against the latter than would have been thought by the Constitution makers. Certain issues relating to reservations being done are examined from a jurisprudential perspective in the following.

 

Reservation in Direct Recruitment vis-à-vis Difference Principle

Looking from the point of view of egalitarianism which advocates removal of inequalities holding that all people deserve equal rights and opportunities, in the Indian scenario, where direct recruitment is being made through open examination, the policy of reservation for backward classes does not seem to hold much water as such classes are already the beneficiaries of the quotas reserved for them in educational institutions over past many years and, therefore, can be considered to be on an equal footing with the general category as regards the question of capability and merit. We are in a way building up a levelling society which was criticized by John Rawls as handicapping the talented.

It would be pertinent to refer to John Rawls’ theory of justice who holds justice as ‘fairness’. He propounded the ‘Difference Principle’ wherein the social and economic inequalities are made to work for the benefit of the least advantaged members of the society. This principle, is subsidiary to ‘equal basic liberties for all’, the other principle of justice given by him to safeguard fundamental liberties of an individual.

The difference principle utilises inequalities for the most deprived classes of the society. But the principle is to follow when everybody gets an equal opportunity to avail themselves of social and political benefits in their entirety.

Egalitarian justice requires the implementation of the difference principle as the talented individuals know that the benefits they would be arriving at are not for them alone but for the society at large. An IAS officer after his selection gets the opportunity of serving the society by way of administering the area under his jurisdiction for which he does not make much of a fortune (as compared to a highly paid private job). If the difference principle is to be applied, one may argue that let the most meritorious, irrespective of his class, be selected to give society the best.

Reservation in Promotions vis-à-vis Equality of Opportunity

Coming to reservation in promotions in government posts, it would be pertinent to recall Peter Westen’s examination of the concept of equality of opportunity according to which opportunities will be considered as equal within a group only if it is subjected to same surmountable obstacles for achieving the same desired goal. It is submitted that providing concession in such posts would be a better alternative as it would prove to be a more effective incentive to work harder and perform better. The Supreme Court had stated in the Mandal Commission case that reservation in promotion is constitutionally impermissible as once the advantaged and the disadvantaged are made equal… any further benefit extended for promotion… would be treating equals unequally.[12]

Carry Forward Rule

The ‘carry forward rule’ has proved to be not a very effective option to aid the depressed classes and rather has created the burden of too many vacancies. In the Mandal Commission case also, it was held to be valid so long as the actual reservation in a particular year does not exceed 50% of the vacancies[13].

Ailing backwardness within ‘Scheduled Backwardness’

It can also be argued that not all the members of backward classes require empowerment through reservation. It is well known that the benefits of reservation have been appropriated by a few castes only. For instance, many of the benefits of reservation have been captured by well-off groups from the depressed classes (e.g. chamars from the SC), while poorer groups from the depressed (e.g. bhangis from the SC) have failed to benefit.[14] It has been held by courts in more than one cases that no area or class could be declared backward perpetually and year to year reservation for the purpose was justified. From a utilitarian perspective, which advocates the maximum satisfaction of maximum number of wants, treating the backward classes as single groups may hold good. But as Rawls criticizes this concept in general, this grouping system fails to appreciate the differences of an individual, and, in the present case, the sub-groups.

As regards the recent amendment securing 10% additional seats for the EWS category along with other reserved sections, the change proposed to be brought by it is much needed for progress of the EWS, but it is questionable as to whether the unreserved general category candidates should be the only ones who have to carry the burden of uplifting the deprived. Should not the already benefitted caste groups also share the burden along with them? Only when all the empowered groups take together the burden for the benefit of socially or economically backward groups of the society, will the justice seem to be done.

Conclusion

Taking into consideration the historical perspective and above mentioned jurisprudential points, it can be said that current policies need to be further worked upon to be declared as fully justified. The intention with which the law was made was for providing progress of the nation as a whole, taking together all classes of citizens.

Any policy or measure of the government ought to be reviewed periodically to assess as to whether it is meeting the desired objectives and to what extent. In this case, this will also involve assessing if reservation for SCs/STs and OBCs treating the groups as whole has resulted in particular castes taking advantage at the cost of other castes within the group. If the purpose is not served to the desired extent, the policy measures need to be reviewed and corrective action taken. This does not seem to be happening in the case with the reservation policy/measures, perhaps due to the huge political stakes. If the argument is that the socially deprived continue to be so even after 70 years of efforts, there is no point in flogging a dead horse and it is time to change the course of action.

One approach could be that reservations be restricted to educational facilities and other welfare facilities and more incentives provided to weaker sections in this regard. This may make the SC/ST and socially and educationally backward candidates able to stand at an equal footing with other candidates in the competition. According to the Meritocratic theory (providing fair equality of opportunity by empowering the weaker sections to the same level as that of the ones coming from well-of background), which Rawls preferred over the Libertarian theory of Justice (formal equality of opportunity where distribution of wealth is determined by the forces of free market), only if everyone begins at the same starting line can it be said that the winners of the race deserve their rewards. Providing reservation further than this does not prima facie amount to empowering such candidates but keeping them immunized from the mainstream competition which may hinder their development in particular and of the society in general.

Even if one persists to maintain reservation at the entry level, again following the Meritocratic theory, it is submitted that reservation should not be provided for in cases of promotion. If compelling reasons are there, concessions may be considered for certain categories. This must, however, be confined to group C and D posts in government.

As regards the ‘carry forward rule’, what is required is balancing of interests. It needs to be improvised so as to incorporate a reasonable time limit after which the vacancies may be filled by any person, whether belonging to the reserved or to the unreserved category.

It is to be borne in mind that persons at higher level in the government determines the fate of nation’s development. Increasing the reservation unreasonably might not only deprive of the general category candidates of a reasonable fair opportunity but also jeopardise the nation’s development. This would also amount to neglecting the development of the society at large which includes those classes for the development of which reservation is done.

It is also to be pondered over as to whether by reserving seats even for the creamy layer in the ‘non-general’ category candidates, are we not compromising with efficient use of our nation’s human resource and not making use of the most skillful persons available. It cannot be denied that the analogy of the race as given by Rawls if fitted in this situation will lead us to the conclusion that reservation in jobs is creating a bias neglecting the fact that the competing candidates provided with extra benefits are already availing themselves of an equal opportunity by ways mentioned in the foregoing. What is required is to prepare them for the race rather than tampering with the starting line i.e. their method of recruitment. This will ensure that justice is not only done but also seems to be done.

 


[1] M. Kapoor, With 29 lakh vacancies, how useful is 10% reservation if Centre, states haven't hired in years?, Business Today (10/01/2019), available at https://www.businesstoday.in/current/economy-politics/10-pct-reservation-quota-govt-must-aim-to-fill-13-lakh-vacancies-for-teachers-4-lakh-in-police-2-lakh-in-railways/story/308570.html, last seen on 17/03/2019.

[2]V.N. Shukla’s Constitution of India, 95 (M.P. Singh, 13th ed., 2015).

[3]Indra Sawhney v. Union of India, AIR 1993 SC 477.

[4]Supra 3, at 103.

[5]Supreme Court of India, Indian Kanoon, available at https://indiankanoon.org/doc/1363234/, last seen on 18/3/2019.

[6](1995) 6 SCC 684.

[7](1999) 7 SCC 209.

[8] Supra 3, at 121.

[9](1996) 6 SCC 580.

[10]A. Shah, Critical Analysis on Reservation Policy in India, available at http://www.legalservicesindia.com/article/1331/Critical-Analysis-on-Reservation-Policy-in-India.html, last seen on 16/03/2019.

[11] V. Pathak, The Hindu Explains: The new 10% quota, its implications, and more, The Hindu (09/01/2019), available at https://www.thehindu.com/news/national/10-quota-faces-several-legal-and-political-challenges/article25943750.ece, last seen on 17/03/2019.

[12]Supra 5.

[13]Supra 3, at 119.

[14] Supra 10.

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