Reservation has been the talk of the town in recent times, especially after the Supreme Court of India recently upheld the validity of the 103rd Amendment. Regardless, reservation or affirmative action has had its fair share of criticism in recent times owing to several reasons. At the same time, the rationale interpreted by the State is that reservation is significantly needed because of the everyday atrocities persons belonging to backward sections of society are subjected to.

This article seeks to evaluate both these sides of reservation and its relevance in contemporary society. The article will also delve deeper into the social setup and the circumstances under which the judgements relating to reservation came up.

Background
India is a land of various ethnicities and diverse people. While this is a sign of inclusivity reflecting unity in diversity, the reality is not exactly picture-perfect. Among Hindus, there is a very regressive caste system being followed to this date due to which certain communities face discrimination.

Before Independence
There are broadly four varnas/castes among Hindus namely Brahmin, Kshatriya, Vaishya, and Shudras in descending order of their superiority. There was also the fifth community of untouchables who were not even considered a part of the caste system i.e, they were outcastes. They weren't allowed to live in the main city or maintain any contact with people belonging to other castes.

Initially introduced for ensuring the normal functioning of society, it sowed the seeds for caste-based discrimination and abuse of power by persons belonging to higher castes. In every aspect of life such as education, employment, access to electricity, or even the basic necessities of healthcare and water, the untouchables or Dalits faced discrimination. This essentially led to a broad distinction between the advantaged (Brahmins and Kshatriyas) and disadvantaged (Shudras and Untouchables) sections of society.

Such discrimination is not merely restricted to Hindus. There are other religions in India as well in which people are impoverished and face discrimination. For example, the Muslim community in India is still subjected to discrimination in terms of employment, and education as shown in the Sachar Committee Report (2006).

During British Rule, this discrimination further increased and efforts were being made during the mid 19th Century to end this discrimination. Mahatma Gandhi took a step forward to sensitize the work of cleaning toilets by the lower caste people and calling Dalits Harijans. Efforts were also being made to provide them with adequate representation in the Parliament during the British regime for which certain seats were being reserved for them.

Dr. BR Ambedkar, who was himself a Dalit advocated for their rights and for the removal of the caste system as this was the primary source of all evils. He eventually succeeded in obtaining a communal award for the Dalits through the Poona Pact and this pattern of reservation has been followed till now.

From thereon, the importance of equal opportunities, and equal treatment of all individuals and religions was recognized and was sought to be imbibed in the Constitution post-independence.

After Independence
The Constitution of India took into consideration the inequalities and discrimination among different communities. As a result, certain Fundamental Rights were introduced in the Constitution which focused on equality in all aspects. Some of these rights are as follows.

Article 14 focuses on equality of each and every individual in the eyes of law. In other words, any person whether a poor farmer or a rich bureaucrat will be equally treated by the law and there shall be no discrimination.

Article 15 prohibits any form of discrimination on the grounds of caste, race, religion, gender, place of birth, etc. This is also an effort to ensure that no person belonging to a historically backward varna or caste is subjected to any atrocity.

Article 16 provides the very important right of equality of opportunity in matters relating to employment or other related matters. For the purposes of equality of opportunity, affirmative action can be taken by the state to reserve certain seats in educational institutions or for Government posts.

For the purposes of this article, people belonging to lower castes or communities would be classified under Scheduled Castes (SCs), Scheduled Tribes (STs), or Socially and Educationally Backward Classes (SEBCs).

The Preamble of the Indian Constitution further added the terms Socialist and Secular (in 1976) to ensure equality among all persons belonging to different religions.

These were all considered to the part of the basic structure of the Indian Constitution. The basic structure of the constitution can never be abrogated as given in the case of Keshavananda Bharati v State of Kerala (1973). Later on, several amendments were brought in for ensuring adequate representation of people belonging to Scheduled Castes or Scheduled Tribes and at the same time achieving its balance with a merit-based appointment for different positions.

Mandal Commission Report
The Mandal Commission or the Socially and Educationally Backward Classes Commission was introduced in 1979 to review and identify the socially and educationally backward classes of India. It was headed by BP Mandal to determine those castes which were discriminated against and those communities which suffered from economic, social, or educational backwardness for redressing their injustices.

The main finding of the Mandal Commission was that around 52% of the total population belonged to Other Backward Classes (OBCs) and hence 27% of all positions in Central Government jobs or PSUs should be reserved for OBCs. This would increase the total reservation of seats to 49% for the SCs, STs, and OBCs. The rest 51% of seats were to be reserved for the general category. This was formally adopted as a law by the VP Singh Government in 1980 and was made applicable to all Indian states.

However, it led to widespread protests by the students as many believed it to be unfair to the students who used to be selected on the basis of merit or those who belonged to the general strata of society. Reservation restricted the number of meritorious students and they had to struggle much more to get to those positions. There are several cases that came up during that time in protest of the Government's measures.

Indra Sawhney v Union of India (1992)

This was the major case in which a petition had been filed by Indra Sawhney opposing the Mandal Commission Report. She primarily contended that this was clearly violative of the Right to Equality guaranteed under Article 14 of the Indian Constitution and that the bracket for reservation was too lopsided towards the SCs, STs, and the OBCs.

The Court however in this case clearly stated that the purpose of reservation is to create a level playing field between the disadvantaged and the privileged sections of society. It is a way of compensating the lower caste citizens for all the atrocities they had been subjected to for more than 2 centuries and ensuring their participation and inclusion in society. As a result, Court determined a reservation of up to 50% in educational institutions and Government jobs for people belonging to Scheduled Castes or Scheduled Tribes. It was said to be a temporary measure that is to be effective till the time problem of backwardness is addressed.

This ruling of the Supreme Court was included under Article 16(4) of the Constitution through the 76th Amendment Act of 1994 which stated that not more than 50% of the seats in educational institutions or Government jobs shall be reserved for SCs, STs, or OBCs. This was further extended to reservation for SCs and STs for promotions in Government jobs through the 77th Amendment Act, 1995 under Article 16(4)(A) of the Constitution.

MG Badappanvar v State of Karnataka (2001)

In this particular case, the 85th Amendment Act was challenged which amended Article 16(4)(A). It changed the words 'in matters of promotion to any class' to 'in matters of promotion, with consequential seniority, to any class.' The Court in this case held that the roster promotions were solely for the purpose of gaining representation at various levels of service and were not going to confer any seniority as such. Articles 16(1) and 16(4)(A) don't provide any Fundamental Rights as such but provide discretion to the state for considering reservation. Reservation in the field of promotion is not to be provided necessarily in all Government positions especially those which require higher level technical skills.

M Nagraj v Union of India (2006)

This case also upheld the validity of the 85th Amendment which provided for reservation in matters of promotion with consequential seniority. The Court suggested the 'Replacement Theory' for reservation and excluded the backlog vacancies from the 50% limit. However, direct recruitment for the purpose of ensuring adequate representation of any backward class or community shall be carried out at the discretion of the authority which is indulging in such acts. This was a landmark case that justified the need and also laid down the process to be followed under Article 16(4) of the Constitution for ensuring adequate representation of the depressed classes.

Ashok Kumar Thakur v Union of India (2008)

The Supreme Court in this particular case upheld the 93rd Constitutional Amendment which had added Article 15(5) to the Indian Constitution. Additionally, the Court stated that the creamy layer principle doesn't apply to SCs and STs and is only restricted to OBCs. The creamy layer principle means that if any member belonging to Other Backward Classes has an income level or whose parents have an annual income of 8 Lakhs per annum, is to be included under the General category.

For the SCs and the STs, even if they have financial stability, they can avail of reservation because they are majorly subjected to social discrimination in their community. The Court further directed the Government to set reservation limit at a level that would ensure that quality and meritocracy do not suffer. The backwardness of different communities must be reviewed every 10 years and appropriate action must be taken to ensure necessary inclusion.

Through all these judgements the Court clearly reflected its bid to ensure social inclusion and a level playing field through affirmative action. Three major categories of disadvantaged sections were identified namely Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) were recognized. However, these didn't prove to be sufficient and protection was required to be given to many more communities. As a result, 103rd Constitutional Amendment was made in Articles 15(6) and 16(6) of the Indian Constitution.

103rd Constitutional Amendment

The 103rd Constitutional Amendment was introduced in 2019 to cover up for the economic backwardness suffered by persons other than those belonging to SCs and the STs. It brought about a reservation of 10% for the Economically Weaker Section (EWS) in society. This was apart from the prevailing 50% bracket of reservation for SCs, STs, and OBCs. For bringing about this amendment, changes were brought about under Articles 15(6) and 16(6) of the Constitution. Some of the salient features of this amendment are as follows:

1. Article 15(6) provides reservation for people belonging to economically weaker sections for admission in educational institutions. However, they should not fall within the scope of Articles 15(4) and 15(5)
2. Article 16(6) mentions reservation of persons belonging to the EWS category in Government jobs and positions.
3. Any person, irrespective of their caste having an income level of less than 8 lakhs per annum or agricultural land of less than 5 acres can avail the benefit of this scheme. Additionally, if they own a residential plot that has an area of less than 200 sq yards can also avail its benefit.
4. This reservation for EWS is over and above the already existing reservation bracket of 50% for SCs and STs, thereby increasing the maximum percentage of reservation in Government posts to 60%.
    

While this amendment has helped people from the general category with financial insecurity to obtain benefits like the other backward communities, it has also brought to light the clear violation of the basic structure of the Constitution. It has again spurred a debate about meritocracy versus positive discrimination to which there is absolutely no clear solution in current times.

Encouraging meritocracy is extremely important as it would eventually improve the nation's productivity but at the same time, the atrocities and injustices of backward classes also can't be ignored and require an affirmative action to ensure equal opportunities for all.

Recent Developments
The 103rd Amendment was not easily accepted by all individuals in the country. While it is aimed at benefitting the economically backward sections of the community, there have been a lot of protests against it. A large number of petitions have been filed before the Court since the amendment stating that it is violative of the basic structure of the Indian Constitution and goes against the Right to Equality guaranteed under Article 14 of the Constitution.

In the very recent case of Janhit Abhiyan v Union of India (2022), the Supreme Court in a 3:2 verdict was in favour of 10% reservation for EWS over and above the 50% reservation bracket for SCs and STs. The primary contentions raised in this case were violation of the Right to equality of all citizens and violation of the basic structure of the Constitution. Additionally, the bracket for reservation had been fixed by the Mandal Commission at 50% and the amendment was increasing it to 60%. The majority and dissenting opinions of the judges are as follows:

Majority Opinion- Justice Dinesh Maheshwari, Bela M Trivedi, and JB Pardiwala
The majority opinion was in the favour of 103rd Amendment and the judges were of the firm opinion that the basic structure of the Constitution was not being violated. This amendment is an instrument to ensure the development and the upliftment of not only the socially and educationally backward classes of the country but for any other disadvantaged section of the society. It has to act as a tool for counteracting the inequalities and moving towards the goal of achieving an egalitarian society.

Further, Justice Maheshwari stated that the 50% ceiling fixed by the Mandal Commission is not rigid in nature and only applies in the case of reservation that is envisaged under Articles 15(4), 15(5), and 16(4) of the Constitution. It doesn't violate the basic structure of the Constitution by providing powers to the state to make certain special provisions for giving reservation to the Economically Backward Classes based on economic criteria. There is essentially a need to adequately balance the aspects of equality of opportunity for all with meritocracy and the amendment focuses on achieving the same.

Reservation is a means and not an end in itself to secure economic and social justice for all in the country. The focus should always be on extinguishing the backwardness and the atrocities that certain backward communities are subjected to through education and employment opportunities. Discrimination is an inherent social evil in any society and should be eliminated for which reservation is needed.

Further Justice Trivedi also went on to say that classifying persons on economic grounds under the EWS category would amount to a reasonable classification under Article 14 of the Constitution. It fulfills all essentials such as non-arbitrary, reasonable relation with the object of reservation, and is exceptional from those left out of this group as the classification is on an economic basis. Hence it doesn't violate Article 14 or even the basic structure to become unconstitutional.

At the same time, the judges also stressed upon the fact that reservation should not be allowed to become a vested interest. There is a constant need to review the measures relating to reservation and fine-tune them according to the changing social and economic conditions (in light of the realities of the day). It should not be there for an indefinite period of time such that it becomes a vested interest.

Dissenting opinion- Justice UU Lalit, Ravindra S Bhat
The dissenting opinion given by the two judges primarily stressed upon the fact that reservation for the SCs, STs, and the OBCs was quite sufficient for ensuring equality of opportunity. More reservation than this percentage is going to be detrimental towards meritocracy thereby adversely impacting the productivity of the nation. The tables will turn and the general category would now be subjected to discrimination and would effectively become a minority in the social setup. It is rather 'contradictory to the essence of equal opportunity' and 'strikes at the heart of equality code.'

The purpose of article 16 is to ensure the empowerment of those communities that have not been provided adequate representation in society. In other words, the criteria of social discrimination is given much more importance or priority as compared to the economic criteria.

The economic criteria is mostly restricted in terms of access to public goods as given under Article 15 of the Constitution. The 10% bracket of reservation for EWS over and above the already existing 50% reservation is violative of the basic structure of the Constitution and there is no need for a separate classification of EWS on the basis of economic criteria.

This judgement has further strengthened the thinking of the Government to support all the depressed/backward classes of the country. To achieve this, any action taken with certain precautions will be completely reasonable and justified.

Analysis
This judgement failed to address certain important questions that are at the helm of affirmative action.

Firstly, caste-based discrimination is based not only on social grounds but also significantly on economic grounds. Most of the backward sections of society face financial distress due to a lack of opportunities or economic support. Yet the persons belonging to Scheduled Castes or Scheduled Tribes are excluded from availing benefit under the EWS category.

Secondly, since economic distress is faced majorly by the SCs and the STs, there is no need to introduce an entirely new category of EWS an undue advantage of which can be easily taken by the affluent. Further, the end that reservation aims to achieve doesn't have the same impact on all.

For example, reservation in educational institutions will not have exactly the same objective in comparison to reservation for Government positions. Hence the way reservation policy is introduced or implemented for different citizens among the population should also change.

Positive impact of Reservation
Equal opportunities
The basic purpose of reservation is to ensure equality of opportunities in education, Government jobs, etc for all citizens irrespective of their caste, gender, race, religion, etc. When all individuals will have equal access to resources, the backward communities would also be able to uplift themselves in society. This in turn fulfills the very purpose of the Constitution as given under Articles 15 and 16 of the Constitution.

Level playing field
The true potential of any individual can be judged only when he/she competes with equals. Reservation brings the SCs and STs to an equal level to the others in society. As a result, all of them run the race from the same starting point. This ensures that there is complete fairness and no discrimination towards any individual or community.

Compensating for past injustices
Certain communities from a very long have been subjected to extreme discrimination and isolation from society. They were also not allowed to participate in general society. Reservation is also an attempt to compensate for all the injustices these communities have faced in the past and to ensure that they break out of these shackles to start a new journey where they are respected and treated equally.

Integration into mainstream society
Reservation has brought the disadvantaged sections of society into mainstream society. They now enjoy adequate representation in Government posts and educational institutions thereby increasing their participation in the general functioning of society. They are now no longer treated as outcasts and have rather become an indispensable part of society.

Increased mobility of labour
Reservation has directly ensured that equal opportunities are given to persons regardless of their castes. As a result, persons belonging to Scheduled Castes or Scheduled Tribes who were bound to perform certain specific jobs could now easily perform any work which they wished. As a result, they are no longer restricted and can shift from the traditional jobs which were imposed to the jobs which they want to perform at their own will. This has helped in ensuring the mobility of labour which has had a positive impact on the Indian Economy.

Improvement in quality of administration
When all citizens will get equal education opportunities, they would form an extremely educated workforce. If they then enter into administrative service, they would be able to ensure a much better quality of services for the customers. An example of the same is railways which have a large number of employees who belong to Scheduled Castes and Scheduled Tribes. The functioning has improved a lot over the years in Railways with the employees being able to adapt to the various technological innovations that have taken place over the years.

These are the major positive effects of the reservation system that has been followed in India. However, there's still a long way to go.

Drawbacks of reservation
Detrimental to meritocracy
Reservation to a large extent goes against the principle of providing opportunities on a merit basis. It provides an edge to certain individuals over others such that even when people possess the required capabilities, they aren't able to get the opportunity to reach a higher position or obtain a Government job. On the other hand, those who didn't have the requisite capabilities might obtain a Government post through reservation.

Increases casteism
Reservation rather than reducing casteism increases it. This is so because the persons get classified into different categories of SCs or STs which further creates a caste-based society. By classifying people on basis of their caste, the Government has retained the caste system instead of removing it which further has the tendency to strengthen social evils.

Social unrest
Reservation has led to widespread protests from certain sections of society over the years. These have mostly been persons from the general category who are higher in population but get lesser representation resulting from the 103rd Amendment. One of the major protests took place during the time Mandal Commission Report was implemented by the VP Singh Government for going against the Fundamental Right to equality.

Used for personal benefits
Certain communities, despite being affluent and dominant in a region, demand reservation for them. As a result, certain communities which have genuinely been the victims of discrimination and atrocities are sidelined. In other words, demands for reservation have been rising from certain sections of society that haven't suffered as much as the other communities. This has opened the floodgates to various communities seeking reservation sidelining the others who have been historically subjected to discrimination.

Discourages other communities
Reservation might create a feeling among other communities that the Government is being partial to the other community and that their contribution towards the nation or their merit is not being valued. As a result, they might develop feelings of hatred towards the other community for absolutely no fault of theirs. They would eventually become cynical and discouraged to work hard because of this feeling of efforts being wasted.

Short-term solution
Reservation is only a short-term solution to address the issue of backwardness. In the long run, this could do more bad than good as certain communities might start feeling highly discriminated against and would protest which might turn violent. Further, there are a multitude of factors that contribute towards caste-based discrimination and reservation is not a panacea to cure all of them. There are certain questions that are yet to be answered to remove all forms of caste-based discrimination. To answer these, the Central Government and State Governments need to work with cohesion.

Conclusion
Reservation system in India has its own set of drawbacks as well as advantages. While it has ensured affirmative action through an adequate representation of backward communities, it has also spurred widespread protests over the years. While there is a need to encourage meritocracy and promote a competitive spirit among citizens, there is also a need to support those who have been secluded from society and have been subjected to atrocities for a long time.

The 103rd Amendment introduced a new category under which individuals who have faced financial distress can avail reservation. It has brought with it a new bunch of surprises and it remains to be seen how the recent judgement is going to impact reservation system and overall caste-based discrimination in India. Till then, all of us can hope that its impact is only positive and focused towards achieving the vision of a welfare state where each and every individual's efforts are valued and respected.

References:

• https://indianexpress.com/article/opinion/columns/ews-reservation-supreme-court-equality-non-discrimination-affirmative-action-8274435/
• https://www.academia.edu/18311102/An_Analysis_of_Reservation_System_in_India
• https://indianexpress.com/article/india/ews-quota-supreme-court-103rd-constitutional-amendment-8253955/
• https://thewire.in/law/supreme-court-reservation-fundamental-right
• https://asiasociety.org/education/jati-caste-system-india
• https://www.thehindu.com/news/national/explained-what-has-the-supreme-court-ruled-on-creamy-layer/article61424803.ece