Reservation vis-a-vis the Constitution
Justice Rao said that he wonders how all the political rivals have come together in this matter and he said that he respects the concerns of all the political parties who came together for the concerns of backward classes but reservation is not a fundamental Right.
So how all of this began? All of this began in 1932 when Poona pact was signed between Mahatma Gandhi and Dr BR Ambedkar to shape the system of representation in India.
So, what exactly is a reservation? It is a type of positive discrimination to give preferential treatment to the marginalized sector in the sector of employment and higher education. This move was adopted to protect the marginalized sector from social and historical injustice. India has a very big history of caste discrimination and this move was taken to provide justice to all the disadvantageous people.
Take of Constitution on reservation:-
Article 15(4) and Article 16(4) of the Indian constitution states that the equality provisions of the Constitution do not prevent the state from making special provisions in the matter of in favor of backward classes, particularly the SCs and STs in matters of admission to educational institutions and jobs. Article 16(4A) allows reservation to SCs and STs as long as the government believes that the backward classes are not adequately represented.
Advantages of reservation:-
It has helped many underprivileged to occupy top positions.
It brings meritocracy with equality.
It provides social justice to all the backward classes.
It compensates all the historical injustice, which was endured by the backward classes.
Disadvantages of Reservation:-
It gives rise to internal partition and builds a wall against inter-caste and interfaith marriages.
It is the biggest enemy of meritocracy. Meritocracy is the foundation stone of various progressive countries and it should not be compromised.
Caste-based discrimination perpetuated the notion of caste in society.
The benefit is exercised majorly by the dominant class in backward classes and that’s what most of the marginalized remain marginalized at the end of the day.
Poor people from the forward caste did not get any social or economic advantage and privilege.
Some Historical precedents:-
Any legislation prescribing the reservation on the basis of caste is unconstitutional. This was held in the case of State of Madras v. Srimathi Champakam Doirajan and Venkatraman v. State of Madras. In case of C.A. Rajendran v. Union of India(1967), it was held that the power conferred under Article 16(4) is a discretionary power of State. In the case of Indra Sawhney v. Union of India(1992), the government introduced the reservation for the OBCs on the report of Mandal commission and a creamy layer of 50% was introduced, which means that reservation, in any case, should not increase 50%.
What happened in the recent case:-
DMK, Vaiko, Anbumani Ramadoss, CPI (M), Tamil Nadu Congress Committee and CPI filed the petitions in this case. The political parties filed the petition in opposition of the centre’s decision of not granting 50% reservation to OBCs in Undergraduate, Postgraduate and dental courses of medical colleges of Tamil Nadu.
Arguing for parties led by the DMK, advocate P Wilson said that they were not asking the court to add to existing reservations. He argued, “We are asking the court to implement the existing reservations.” Justice LN Rao rejected the plea of the political parties saying that as the reservation is not a fundamental right so, no remedy is available under article 32 of Indian Constitution.
We do not want to depict that reservation is a futile or trash policy. Reservation is very important for the amelioration of the marginalized sector of society. The main problem with the current situation of the reservation system is no reviewing policy. When the reservation was introduced, it was introduced with an aim to reduce social injustice and to make sure that it is working appropriately, it has to be reviewed and necessary rectifications should be made to make it work smoothly and it was supposed to end one day when everyone becomes Pari Passu bit for the attracting vote bank of the marginalized section, political parties keep on increasing it without review, this is where the main problem lies.
ABOUT THE AUTHOR
Shaurya Shukla, is currently studying law from Chanakya National Law University, Patna.
You can contact them:
Edited By: Swati Tolambia
Disclaimer from Legal Armor:
We at Legal Armor do not endorse the Authors' views and are in no way responsible for the said views. We are just publishing the Write-ups as blogs with just light editing, and are in no way responsible for any legal claims. Legal Armor shall not be liable for any plagiarized content.