Reservation: Still A Tough Nut To Crack

This blog is inscribed by  Sreepriya K.

Equality is one of the fundamental principle on which Our noble constitution built. The makers of our constitution included provisions for the empowerment of backward classes who are socially and economically weak [1]. As equality is one of the main principles enshrined in our constitution, our constitution makers incorporated different provisions for weaker sections of our society for their empowerment. 

Constitution of India empowers the state to make special provisions for the reservation of appointment of post in favour of any backward class of Citizens which in the opinion of the state are not adequately represented. So in essence constitution mainly aims at empowering below sections of the society, 

Scheduled Caste and Scheduled Tribe

Other backward class [2]

Some provisions in our constitution dealing with reservation of SC/ ST are, 

  • Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST.
  • Article 330 and 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively.
  • Article 243D provides reservation of seats for SCs and STs in every Panchayat.
  • Article 243T provides reservation of seats for SCs and STs in every Municipality.
  • 243D provides reservation of seat in Panchayat for SC/ST
  • Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.
  • Part XVI

In all these provisions our constitutional makers made sure that nothing in these provisions are vague or creating ambiguity. These provisions are used to protect and empower the people who belongs to the  particular caste and hence suffered a set back educationally, socially and economically due to the age old caste system prevailed in India. So by putting the people who are considered as lower caste and thus denied many social achievements are now included under the ambit of Scheduled Caste they are able to get many benefits both socially and educationally.

But constitutional makers never tried to bring Other Backward Class within the ambit of caste system explicitly. It is clear from the constitution that unlike other legislations each and every term in the constitution is free from ambiguities and constitutional makers put special attention to use each and every term with utmost caution so as to avoid ambiguity and vagueness. So the term other backward class needs a special attention as we must not defeat the very intent of the makers of our constitution. 

Article 340 deals with the need to, inter alia, identify those “socially and educationally backward classes”, understand the conditions of their backwardness, and make recommendations to remove the difficulties they face. The President can, under Article 340, can establish a commission to scrutinize the condition of socially and educationally backward classes. So this section also mentions about the “backward class and not Backward Caste” so it must be analysed critically by our judiciary for doing justice to the people of India and also to achieve what constitutional makers intended. Also Article 340 is incorporated for giving adequate support for the backward class who are once forward by identifying the real backward class by a commission established by our Honourable President of India and to avoid taking the benefit of the section by some particular class only for many years or even centuries. To avoid this injustice there is Article 340 in our constitution which must be used for identifying the conditions of backward class in our country and not backward caste.

In our country still there are children who are unable to study due to their economic backwardness, there are children who are still suffering from malnutrition who are born to parents whom we are calling this unreserved, economically and socially forward class of citizens. 

Why we are not taking care of them? 

They are also our countries future. We must consider them also. Only because they are born in an unreserved category does not mean that they are denied the so called right to live with dignity enshrined in Article 21 of Constitution of India.

Economic backward class in unreserved Caste : 

The recent move by Mr. Narendra Modi led BJP government for the reservation of economic backward section of upper caste is the need of the hour. We must not forget what is equality and what our constitutional makers intended. If we ignore the weaker section of the upper caste gradually they will become more and more backward educationally, socially and economically. This is not our constitutional makers dreamed. 

The eligibility criteria for the purpose of getting reservation for economic backward class of forward community is given below,

  • Persons who are not covered under the scheme of reservation for SCs, STs and OBCs and whose family has gross annual income below Rs 8OO lakh (Rupees eight lakh only) are to be identified as EWSs for benefit of reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc. for the financial year prior to the year of application. 
  • Also persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income:- 

i. 5 acres of agricultural land and above; 

ii. Residential at of 1000 sq ft. and above; 

iii. Residential plot of 100 sq. yards and above in notified municipalities; 

iv. Residential, plot of 200 sq. yards and above in areas other than the notified municipalities. 

  • The property held by a “Family” in different locations or different places/cities would be clubbed while applying the land. or property holding test to determine EWS status. 
  • The term “Family” for this purpose will include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/her spouse and children below the age of 18 years[3].

The criteria which must be satisfied for getting a reservation for economic backward people in forward communities are quite strong enough to bypass economically sound people from misusing the said provision. So it must be implemented all over India for empowering the weaker section of the upper caste. 

We should look into this considering that many people who are economically very much sound and in all means who are in sound condition still getting the benefit of reservation only because of the fact that they are born in a particular caste or community. These communities are no more economically backward now, there may be some section in these communities who are backward but the situation is same as that in upper caste. Is this the equality guaranteed in our constitution? [5]

So either this caste based reservation must be completely abolished or more reservation must be given to economic backward people belonging to castes which is not having any reservations. 

Topic of reservation is incomplete without mentioning about Indra Sawhney V Union of India[6], in this case it arose the question of  What would be the content of the phrase “Backward Class” in Article 16(4) of the Constitution and whether caste by itself could constitute a class. But unfortunately a 9 Judge Bench Rules that  “Backward class of citizens in Article 16(4) can be identified based on the caste system & not only on an economic basis”. With due respect to the Judgement pronounced by our Honourable Supreme Court of India in Indra Sawhney Case, it is the necessity of the society to change the views with respect to changing needs of the society. As we always says Constitution is a dynamic legislation which changes with the changing needs of the society and our Constitution cannot be static.

Constitution makes it clear that equals must be treated equally but not unequal. Why still people who are in a good economic conditions are getting the benefits of reservation on the basis of their caste only, so it is time to critically analyse the term “ other backward class “ in our constitution by our Judiciary. 

  1. Article 15(4), The Constitution of India, 1950 and Article 16(4) The Constitution of India, 1950
  2. Article 15(4), The Constitution of India, 1950
  3. No.36039/1/2019-Estt (Res) , Government of India
  4. Article 14, The constitution of India, 1950
  5. INDRA SAWHNEY AND ORS. V. UNION OF INDIA AND ORS., AIR 1993 SC 477

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