RESERVATION IN INDIA: RHETORIC AND REALITY

Reservation is always contentious and sentimental issue and raises many concerns of the people. The policy of reservation and safeguards provided to Scheduled Castes and Scheduled Tribes and Other Backward Classes has adversely affected the unity and solidarity of the nation. Reservation in India is all about reserving access to seats in the government jobs, educational institutions and even legislatures to certain sections of the population. The reservation can also be seen as positive discrimination. Reservation in India is a government policy, backed by the Indian Constitution. Part XVI deals with reservation of SC and ST in Central and state legislature. The need for reservation can be looked from legal and socio-cultural perspective. The act of reservation is reserving seats in educational institutions, certain places of employment for certain castes and classes of society which are considered backward, those being the Scheduled Castes, Scheduled Tribes and Other Backward Castes. Reservation is an effective measure to end the oppressive discrimination. Reservation facilitates empowerment and social harmony for all in the segments.

Reservation is always contentious and sentimental issue and raises many concerns of the people. The policy of reservation and safeguards provided to Scheduled Castes and Scheduled Tribes and Other Backward Classes has adversely affected the unity and solidarity of the nation. Reservation in India is all about reserving access to seats in the government jobs, educational institutions and even legislatures to certain sections of the population. The reservation can also be seen as positive discrimination. Reservation in India is a government policy, backed by the Indian Constitution. Part XVI deals with reservation of SC and ST in Central and state legislature. The need for reservation can be looked from legal and socio-cultural perspective. The act of reservation is reserving seats in educational institutions, certain places of employment for certain castes and classes of society which are considered "backward", those being the Scheduled Castes, Scheduled Tribes and Other Backward Castes. Reservation is an effective measure to end the oppressive discrimination. Reservation facilitates empowerment and social harmony for all in the segments.

…………………………………………………………………………………………………….... Introduction:-
Members who benefit from the reservation system means "paying back to the society", which also needs to be seen as advocacy for uplifting the weakest. B.R. Ambedkar (18March 1956) Reservation as an issue needs systematic study and approach. The objective of the constitutional makers was to provide protection to the weaker and down-trodden sections of our society those who have withstood oppression and suffering at the hands of the powerful section of the same society. This incorporation was meant as an upheaval process for backward classes to mitigate most of the oppression faced during the casteist era. It was done by granting them equal opportunities and special reservations to ensure their participation in the legal framework of the country.
The system of reservation in India comprises a series of affirmative action measures, such as reserving access to seats in the various legislatures, to government jobs and to enrollment in higher educational institutions. The societal inequality in India is represented by the grossly inadequate representation of Schedule Casts, Schedule Tribes and Other Back Ward Castes in employment and education due to historic, social and cultural reasons. The reservation nourishes the historically disadvantaged castes ISSN: 2320-5407 Int. J. Adv. Res. 9(07), 507-515 508 and tribes, listed as Scheduled Castes and Scheduled Tribes by the Government of India. The reservation is undertaken to address the historic oppression, inequality and discrimination faced by those communities and to give these communities a place. It is intended to realize the promise of equality enshrined in the constitution. However, there has been a serious debate about reservation.
Over the years, the categories for affirmative action have been expanded beyond the list of Schedule Castes (SC) and Scheduled Tribes (ST) to include a special category of Other Backward Classes (OBC) and Socio-Economic Backward Class (SEBC). Consideration has been given to economically backward within the community itself in providing reservations.
Reservation is governed by constitutional laws, statutory laws and local rules and regulations. The Scheduled castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) and some states Backward Classes among Muslims under a category called BC (M) are the primary beneficiaries of the reservation policies under the Constitution with the objective of ensuring a level playing field. However, in the recent years there has been complete reservation Exclusion Agitations among some of the other general section of Population due to a notion of denying them the access to full opportunity in the nation.

Basis of Reservation
The basis of reservation cannot be attributed to a single concept but a combination of them. Primary among them is the welfare concept, that is, the upliftment of socially and economically weaker sections of the people. In this case of Scheduled Castes (SC) to a considerable extent, though not solely, the concept of compensations for past injustices and deprivations suffered by them finds place.
Reservation in India law is a form of affirmative action whereby a percentage of seats are reserved in the Public Sector Units, Union and State Civil Services and Union and State government departments and in all Public and Private Educational Institutions, except in the religious/ linguistic minority educational institutions, for the socially and educationally backward communities and the Scheduled castes(SC) and Scheduled Tribes(ST) who are inadequately represented in these services and institutions. The reservation policy is also extended for the Scheduled Castes (SC) and Scheduled Tribes (ST) for representation in the Parliament of India.
The framer of the Constitution believed that, due to the cast system, SCs and the STs were historically oppressed and denied respect and equal opportunity in Indian society and were thus under-represented in nation-building activities.
From the beginning, only Scheduled Castes and Scheduled Tribes were the beneficiaries of this policy, but after the implementation of the Mandal Commission Report in 1980, Other backward Classes also became an integral part of this scheme. Made changes in 16(4A)-changed the words "in matters of promotion to any class" to the words in matters of promotion, with consequential seniority, to any class. Article 15 Which prohibit discrimination, also contain a clause allowing the union and state governments to make any special provision for the advancement of any social and educationally backward classes of citizens or for the Scheduled castes and Scheduled Tribes. Article 15 (1) State shall not discriminate against any citizen on grounds of religion, race, cast, sex, place of birth. Article 15(2) Constitution makes the accessibility to shops, Public restaurants, hotels and places of public entertainment, wells, tanks, Bathing ghats, roads and other places of public use which are fully or partly funded by the Government to all people belonging to any caste, creed, race, sex or whatever. Article 15(3) State is empowered to make special provisions for women and children.

Constitutional Amendment
But the government had done so, it would have been challenged in the court to be discriminatory. So, in order that any special provision that the state may make for the educational, economic or social advancement of any backward class of citizens may not be challenged on the grounds of being discriminatory, the government brought the first amendment of the constitution in 1951 and added new clauses 15(4) and 15(5) which became the foundation bricks of Reservation Policy in India.
Article 15(4) and 15(5) the state was empowered to make special provisions for the advancements of any socially and educationally backward classes of the citizens or for the SCs and STs.
While the 15 is general in its scope, in the Article 16, the equality of opportunity has been emphasized. Article 16 No person will face discrimination in the matter of opportunity. Then this Article mentions seven prohibited grounds viz. religion, race, cast, sex, descent, place of birth, residence or any of these seven, on which discrimination is disallowed in India.

Discrimination on the basis of residence
Article 16(3) the parliament can make any law prescribing employment or appointment for a government job on the basis of residence. This means that if parliament finds it suitable, it can discriminate on the ground of residence. The parliament is empowered to make recruitment within a state or union territory in which person"s "residence" may get preference. But at the same time, the State Governments are not allowed to make such a recruitment in which residence of a person gets preference in state government jobs.
For example, in October 2011, the Bengal Police had given a recruitment notification in which provides for jobs for not only specific districts but even particular areas. This was against the article 16(3) of the constitution. In "Kailash 510 Chandra Sharma versus the state of Rajasthan and others", the Supreme Court observed that residence within a district or rural areas of that district should not be a valid basis for clarification for the purpose of public employment. Residence may be it within a state, region, district, or lesser area within a district cannot be a ground to accord preferential treatment or reservation as provided under Article 16 (3).

Reservation in appointments
Article 16(4) the state is empowered to make any provisions for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state. Via various amendments, the article 16 has been further tweaked and it is now a law that: 1. State can make any provision for reservation in matters of promotion, 2. Filling backlog vacancies via reservation.
The above two have been enabled by the constitution only on satisfying two conditions. One of them is that state should have an opinion that particular class is backward. Second is that the State is of the opinion that the said class is not adequately represented in the Government job. The Government had always an opinion that the SCs and STs have not been adequately represented in the Government jobs so used these provision to enable reservations in the Government jobs.
Article 335 of the Constitution mandates that the "claims of the members of the Schedule Castes and Scheduled Tribes shall be taken into consideration, consistently with maintenance of efficacy of administration".
A National Commission for Scheduled Castes and Scheduled Tribes was created to investigate, monitor, advice and evaluate the progress of the Scheduled Castes and Scheduled Tribes under the schemes aimed at the socio-economic development of these groups. Another Commission was also created to investigate the conditions of the socially and educationally backward classes.
The Constitution"s reservations construct, which explicitly singles out certain castes for special preferential treatment, contradicts the document"s prohibition on discrimination based on caste, race and other such criteria. Furthermore, India"s caste system itself, with its strict hierarchy dictated by birth, is at odds with the ideals of equality and social justice.
The untouchability offences Act, 1955 renamed as the Protection of Civil Rights Act, 1976 was intended to provide enforcement of Article 17 of the Constitution, outlawing untouchability. It fell short of expectations. A new law, the Scheduled Castes and Scheduled Tribes prevention and atrocities Act, 1989 came into force. Similar to an American hate crimes statute provides heavier penalties than under ordinary law for eighteen specified crimes including forcing the eating of obnoxious substances, bonded labour and sexual exploitation.
In 1990, a five member commission replaced the officer for Scheduled Castes and Scheduled Tribes. The reservations policy expands involving more groups of people and continuing to generate debate, so too does the task of assessing the system. Though the Scheduled Tribes and other backward classes are undoubtedly important players, covering them thoroughly would be beyond the scope of the study. The other backward classes (OBC), particularly since the release of the Mandal Commission Report, have often been at the Centre of the controversy surrounding reservations. State of Andhra Pradesh v. USV Balram, It was held that the Government should not act on the assumption that once a caste is considered backward, it should continue to be backward for all times. This in turn means that if once a class appears to have reached a stage of progress from which it can be inferred that no further protection is necessary, the state ought to review and revise the list of backward classes. Thus, this may be a significant reason as to why the court refused to go by the Mandal Commission estimate of the population of OBCs to be 52%.

Gender
Women get 50% reservation in Gram Panchayat (village assembly-form of local village government) and Municipals Elections. There is a long term plan to extend this reservation to Parliament and legislative assemblies. For instance, some law schools in India have a 30% reservation for females. Progressive political opinion in India is strongly in favour of providing preferential treatment to women in order to create a level playing field for all of its citizens.
The women"s reservation Bill was passed by the Rajya Sabha on 9 th March 2010 by majority vote for186 members in favour and 1against. It will now be forwarded to the lok Sabha and passed there would be implemented.

Transgender
The statutory provision of the 2019 Act prohibits discrimination against transgender people. The rights of transgender persons Bill 2019 provide for reservations for transgender people in educational institutions and jobs. National Council for Transgender Persons (NCTP) was established in 2020 under the provisions of the transgender persons (protection of rights) Act, 2019. As October 2020, NCTP is led by the Minister of social justice and empowerment. The Centre is working on a scheme to ensure access to health, education and livelihood for transgender person but there is no specific proposal to enforce reservation for the community.

Disability
The provision is dealing with reservation under the rights of persons with disabilities Act, 2016. Persons with disabilities means having 40% and above degree of disability will enjoy a 3% reservation in each of the categories, i.e. in SC, ST, OBC and general category. For PWD candidates shall be relaxation of 5% marks in aggregate shall be admissible. The Supreme Court has decided that 3% reservation will be given to the disabled for promotion in all the posts under the Central and state governments to implement the reservation for the disabled for group C and group D posts only. PWD have the right to respect for humanity, right to protection against exploitation, discrimination and abuse, right to qualified legal aid, right to consult organizations.

Religion
The Tamil Nadu government has allotted 3,5% of seats to Muslims and Christians, there by altering the OBC reservation to 23% to 30% (since it excludes persons belonging to other Backward Castes who are either Muslims or Christians).
Andhra Pradesh"s administration has introduced a law enabling 4% reservations for Muslims. (Contested in court). Kerala Public service Commission has a quota of 12% for Muslims. Religious minority status educational institutes also have 50% reservation for their particular religions. The central government has listed a number of Muslim Communities as backward Muslims, making them eligible for reservation.

State of domiciles
With few exceptions all jobs under state government are reserved to those who are domiciles under that government. In Punjab Engineering College, Chandigarh earlier 85% of seats werereserved for Chandigarh domiciles and now it is 50%. There is also some seat reserved for Jammu and Kashmir migrants in every government aided educational institute.

Others
Some reservations are also made for:

Reservation in Lokpal
On bringing the Prime Minister under the Lokpal-favoured with conditions by most parties-the government is likely to propose that a preliminary inquiry against a sitting Prime Minister should be ordered only after a meeting of all members of the Lokpal, where at least three-fourths agree on the enquiry. The chairperson and members of the Lokpal could be selected by a panel comprising the Prime Minister, Lok Sabha speaker and leader of the opposition in Lok Sabha. The Chief Justice of India or his representative judge and an eminent person nominated by the president of India. The draft amended Bill that will go before the Cabinet will propose that CBI should continue to work independently, reporting to the Lokpal only on cases referred to it by the lokpal, sources said. The government is likely to agree to the suggestion that the CBI director should be selected by a panel comprising the Prime Minister, Leader of Opposition in Lok Sabha and the Lokpal.

Reservation in education
The term reservation has been doing the rounds within the Indian media circuit of late owing to thegovernment decision to implement 27% quota for OBCs in the educational institutions of higher learning. Times have come to study the significance of this matter and see its consequences on the country in the future.
When our country achieved independence, a large section of the society was leading a miserable life. They have been exploited for ages and false beliefs in the society at that time further worsened their condition. The government of that day introduced the concept of reservations so that there would be equal progress of all sections of the society. Over the years, the condition of the people of reserved categories has improved at a fast rate while that of the middle class, general or open category people has remained more or less the same. After nearly 74 years of independence now, general category peoplehave started to feel that they are being subjugated and that the odds have been stacked against them. At a time like this, the government"s decision to bring out legislation to implement a 27% quota for OBCs adds further fuel to the fire.

Related Case Laws
State of UP v. Pradeep Tandon, the state government had issued an order which called for reservation of seats for students in medical institutions. This reservation was extended to candidates from rural areas, hill areas and Uttarakhand area.
The order was challenged in the Supreme Court. The court termed the reservation for the candidates from rural and hill areas means of communication educational facilities to the poor people in the remote areas.
State of Madras v. Smt. ChampakamDorairajan, the Madras government issued an order enforcing for reservation of seats in medical colleges with respect to caste .
The special bench of seven Judges struck down the order, claiming it to be unconstitutional towards of Article 15(1) and 29(2) of the Constitution.

Women Reservation
Despite several years of national consensus on women"s reservation, we have miserably failed to put it into law. A key idea is to create some extra seats that are not assigned to any specific constituency. These quota seats will be filled only when there is a need to increase women"s representation, that is, whenever the number of women elected directly falls below the desired women"s quota. For all purposes, women elected by quota will be treated on par with men and women who are elected directly. For example, suppose it is decided to create 50 quota seats in the Lok Sabha and set the women"s quota at 181, which is one third of 543, the total number of Lok Sabha seats, we can envisage three different scenarios as illustrated below, depending on the number of women getting directly elected.

Excluded from the reservation system
The following people are not entitled to reserved seats thus these people can"t be take an advantage of the reservation system.
The creamy layer is only applicable in the case of other backward classes and not applicable on other group like SC or ST. Though the efforts are also being made to do so, in some state the reservation within reservation has been made but creamy layer as such is applicable in OBCs only.

Related Case laws
IndraSawhney v. Union of India, the 9 Judge Constitution Bench of the Supreme Court by 6:3 majority held that the decision of the Union Government to reserve 27% Government jobs for backward classes provided socially advanced persons, Creamy Layer among them are eliminated, is constitutionally valid. The reservation of seats shall only confine to initial appointments and not to promotions and the total reservations shall not exceed 50 percent.
M. Nagaraj &Ors v. Union of India serves as a guiding light wherein it was held that the creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism which is a part of the constitutional scheme. Hence the extension of reservation benefits to creamy layer is antithetical to the very object of advancement of socially and educationally backward classes.

Reservation-A Fundamental Right
In the landmark case of T. Devadasan v. Union of India, Justice Subba Rao held that the reservation is not an exception to the Fundamental Rights but part of Fundamental Rights. He also held that without reservation there is no equality of opportunity. Right to equality would be meaningless if unequal are treated equally. The Indian Constitution is founded on the bed-rock of balance between Directive Principles of State Policy and Fundamental Rights and it is also an essential feature of the basic structure of Indian Constitution. If reservation right is not given 514 to the tribal people as a Fundamental Right then there will be no equality and they will be remaining in the lower ladder itself. There is a chance of depriving their rights and exploitation. It is a gross injustice according to the modern views.

Suggestions and Solutions:-
Reservation benefits should flow the vast majority of underprivileged and deprived castes. High ranks official"s families, high income professionals should not get the reservation benefits especially in government jobs. Fair and practical ways should be taken to help needy person from each community in reservation. The process of reservation should filter the truly economically deprived persons to bring them justice. Revolutionary change is required in the education system at the grass root level for weaker section of the society. There is need of awareness massage for segments and opposing the provision of government. There is a radical solution to excluding the entire creamy layer among all castes for reservation in education and jobs.
Reservation is provided positive discrimination for benefit of economically backward sections of the society. It tends to harm the society and ensure the privileges for narrow political thought. It should be encouraged by offering financial assistance to the underprivileged person for strengthens the socio-economic condition. A strong political will is needed to find out the justice for backwards.Reservation needs to be altered in provide seats for economically weaker sections of the society. In drastically change reservation should be implemented to caste-based reservations while guaranteeing reserved seats for actual needy persons.

Conclusion:-
The reservation policy in India was adopted with a reason to uplift certain castes who were subjugated to atrocities, social and economic backwardness due to the prevalent dominance of caste system. The creamy layer has been excluded from the list of Scheduled Castes, Scheduled Tribes and OBC after the landmark Mandal Case. The Court has always put up a very generic approach to providing reservation.
Reservations will continue to play a useful role but will likely be a diminishing part of the solution of Dalit problems. There are major flaws. Reservations apply to the public sector but not the private sector, the probable growth area of the Indian economy. The reservations system would benefit markedly from an administrative facelift. As recommended by the Commission for Scheduled Castes and Scheduled Tribes, a comprehensive act, articulating the policy is needed. The revision and streamlining of procedures, such as SC certification, might help curb abuse. In addition, social programs such as those directed at improving the education system, especially at the primary level and in rural areas should be given more emphasis.
The political indulgence in the process of reservation has merely reduced from a noble idea to a strategy to increase the vote bank. A lot of criticism has been made on the criteria of reservation. The socially and economically backward classes are not actually in practical and real sense but backward caste is enough to gain profits in the name of reservations.
In one of the landmark decisions of Ashok Kumar Thakur v. Union of India, justiceRavindran smelling the dangers from the present trend on the reservation had rightly opined that when more people aspire for backwardness instead of forwardness, the country itself stagnates.