Millennium Post

Bringing to the table reserved affairs

The purpose of preferential treatment is to essentially bring the lesser fortunate at par with those that are better off. Once the intended level of equality is achieved, the provisions of preferential treatment ought to be obfuscated. The very intention of the introduction of the system of reservation in the Constitution was with a view of this being a temporary provision until the aim it is directed towards is achieved. Although matters have evolved to grant a semblance of a permanent feature to this compensatory provision, it has come to be a challenge to call in question the relevance of the reservation system juxtaposed with the impact it has deeply created. Often exploited as an instrument of politics, reservation is one subject that evades meaningful discussion. But, in an unexpected turn of events, the Central government approached the Supreme Court to refer to a seven-judge Bench the question whether or not the "creamy layer" concept should apply to the Scheduled Castes and Scheduled Tribes while providing them reservation in promotions. It was on on September 26, 2018 that a five-judge Bench in the Jarnail Singh case unanimously agreed with a 2006 judgment of another five-judge Bench in the M. Nagaraj case which had upheld the application of the creamy layer principle in promotions. The 2018 judgment, authored by Justice Rohinton F. Nariman, had also refused the government's plea to refer the 2006 Nagaraj case judgment to a seven-judge Bench. The 2018 judgment, modifying the part of the Nagaraj case verdict which required the States to show quantifiable data to prove the "backwardness" of a Scheduled Caste/Scheduled Tribe in order to provide quota in promotion in public employment, had, however, rejected the Centre's argument that the Nagaraj case ruling had misread the creamy layer concept by applying it to the SCs/STs. Upholding the Nagaraj case ruling, Justice Nariman had said that "The whole object of reservation is to see that the backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were". The 2018 judgment further said that when a court applies the creamy layer principle to the Scheduled Castes and the Scheduled Tribes, it does not in any manner tinker with the Presidential List under Article 341 or 342 of the Constitution. Justice Nariman had reasoned that the caste or group or sub-group named in the list continues exactly as before. He explained a very crucial point of tremendous social significance that "It is only those within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation". It is a widely held observation that unless the creamy layer principle was applied, those genuinely deserving reservation would not access it and those who were undeserving within the same class would continue to get it. Acknowledging that the principle was based on the fundamental right to equality, the court held that "the benefits, by and large, are snatched away by the top creamy layer of the backward caste or class, keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake," to quote Justice Nariman.

Going back to the inception of this idea, Dr. BR Ambedkar, the architect of the Indian Constitution, had studied the constitutions of nearly 60 countries before giving the structure to our's was largely of the opinion that this system should eventually perish once it has served its purpose. The system of reservation in India is rampant in the form of reserving access to seats in the various legislatures, in government jobs, and in enrollment in institutions of higher education. With the intention to nourish the historically disadvantaged groups and communities, castes and tribes that are listed as Scheduled Castes and Scheduled Tribes by the Union of India, designated categories such as Other Backwards Classes (OBCs) and also the economically backward section avail the opportunity of bringing themselves at an equivalence with those to whom opportunities for choices to exercise are available. The reservation is essentially a mechanism to compensate for and also to address the historic oppression, inequality, and discrimination faced by those communities and to give these communities a place of acceptance. Making this intention sacrosanct, the promise of equality enshrined in the Constitution and from here we formally draw the notion of reservation to address any imbalances in opportunities to common Indian citizens. In emphasising the prohibition of untouchability, the Constitution obligates the state to make special provision for the betterment of the SCs and STs. As matters processed over the years, the categories for affirmative action, popularly known as positive discrimination, have been expanded beyond the traditional categories and have gone on to include several other classes and groups of people depending on the opportunity they aspire for. Although there have been protests from groups outside the system who feel that it is inequitable, the concept of reservation pre dates Independence as quota systems favouring certain castes and other communities existed in several parts of British India. Demands for various forms of positive discrimination had been made when the Maharaja of the princely state of Kolhapur, introduced reservation in favour of non-Brahmin and backward classes, much of which came into force in 1902. He provided free education to everyone and opened several hostels to make it easier for them to receive it. He also tried to ensure that people thus educated were suitably employed, and he appealed both for a class-free India and the abolition of untouchability. It has been adequately established that the reservation system has its advantages as long as it is not perpetuated for exploiting for electoral gains. In a more recent context, when the government of India unilaterally decided to dilute Article 370 and divided the state of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir, a discussion in the Rajya Sabha threw up a point that Article 370 was "anti-women and anti-Dalit." The Home Minister questioned regarding the percentage of OBC there and that OBCs are unable to get reservation there. Although the Home Minister's comment is disputed, this also established that provision for reservation is a viable method of integrating the excluded members of the society and enabling greater equality. More modern methods of reservation include reservation of women in law-making bodies and of sports persons as in the state of Madhya Pradesh where the government that agreed to give 5 per cent reservation to medal-winning athletes in jobs. With a broadened scope of reservation, it is a very effective tool to uplift numerous individuals to brighter and more fulfilling futures. As this target is achieved, there is a need to continually reevaluate this mechanism and save it from stagnating into an instrument of political misuse that seeks to keep the oppressed where they are while still exploiting them and diverting them from opportunities instead of making it available to them.

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