Author Name:   sujay_ilnu

this is about the Indian concept of reservation and how it is related to the concept of equality in constitution of india...

Reservation and the principle of equality

Principle of equality
The concept of equality has been derived from Preamble of the Indian Constitution which guarantees equality of status and opportunity and Article 14 of the Indian Constitution which states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The first expression ‘equality before the law’ which is taken from the English common law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any privilege in favour of any individual[1].

The guiding principle of the article is that all persons and things similar circumstanced shall be treated alike both in respect of privilege conferred and liabilities imposed.[2] ‘Equality before the law ‘means that amongst equal the law should be equal and equally administered and that like should be treated alike.[3] Hence it forbids discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of the unequals. The rule rather is that like should be treated alike and that unlike should be treated differently. The same or uniform treatment of unequals is as bad as unequal treatment of the equals.[4]As a matter of fact all persons are not alike or equal in all respects. Applications of the same laws uniformly to all of them will, therefore, be inconsistent with the principle of equality. To avoid that situation laws must distinguish between those who are equals and to whom they must apply and those who are different and to whom they should not apply. Article 14 forbids class legislation, but does not forbids classification which rests upon reasonable grounds of distinction. The principle of equality does not mean that every law must have universal application to all persons who are not by nature, attainment or circumstances in the same position. The varying needs of different classes of persons require different treatment.[5]

Moving a step ahead in E.P. Royappa v. State of Tamil Nadu[6] the Supreme Court has elaborated the traditional concept of equality which was based on reasonable classification and has laid down a new concept of equality. Bhagwati, J delivering the judgment on behalf of himself, Chandrachud and Krishna Iyer , JJ. propounded the new concept of equality in the following words-“Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrine limits. From a positivistic point of view, equality is antithesis to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belong to the rule of law in public while the other, to the whim and caprice of the absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of article 14.”[7]

Explaining the concept of reasonable classification in D.S. Nakara v. Union of India[8] Desai J. who spoke for the majority has assimilated both the doctrine of arbitrariness and doctrine of classification re-stating the concept of equality and the test is to be applied in order to satisfy the requirement of article 14 his Lordship said-

“Thus, the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left of the group and that the differentia must have a rational nexus to the object sought to be achieved by the statute in question.”[9]

Thus it is the rationale of concept of equality that may be many are claiming more than what they are legally entitled to but not a single individual be denied his basic rights. Again in Mithu v. State of Punjab[10] the Court struck down Section 303 of IPC (which states that if a person under life imprisonment in jail commit murder he must be awarded sentence of death but under section 302 if a person commits murder he may be awarded either sentence of death or life imprisonment) as unconstitutional on the ground that the classification between persons who commit murders whilst under the sentence of imprisonment and those who commit murders whilst they were not under the sentence of life imprisonment for the purpose of making death mandatory in the case of former class and optional in the latter class was not based on any rational principle. Again in International Airport Authority case[11] Bhagwati ,J, reiterated the same principle in the following words :-

“It must now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessary involve negation of equality. The doctrine of classification which is involved by the court is not paraphrase if Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable the impugned legislation or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached.”[12]

Reservation
Reservation is a policy designed to redress past discrimination against lower classes and minority groups through measures to improve their economic and educational opportunities. Reservation is an attempt to promote equal opportunity. It is often instituted in government and educational settings to ensure that minority groups within a society are included in all programs. The justification for reservation is to compensate for past discrimination, persecution or exploitation by the ruling class of a culture or to address existing discrimination. The principle of affirmative action is to promote social equality through the preferential treatment of socioeconomically disadvantaged people. More over the basic aim of reservation is to create social equality. Social equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the extent of property rights. However, it also includes access to education, health care and other social securities. It also includes equal opportunities and obligations, and so involves the whole society. Social equality refers to social, rather than economic, or income equality.[13]

History of the practice of reservation
For history of practice of reservation in India please read the following topic from wikipedia : http://en.wikipedia.org/wiki/Reservation_in_India

Mandal Commission Report
The Mandal Commission was established in India in 1979 by the Janata Party government under Prime Minister Morarji Desai with a mandate to "identify the socially or educationally backward."[14] It was headed by Indian parliamentarian Bindheshwari Prasad Mandal to consider the question of seat reservations and quotas for people to redress caste discrimination, and used eleven social, economic, and educational indicators to determine backwardness. In 1980, the commission's report affirmed the affirmative action practice under Indian law whereby members of lower castes (known as Other Backward Classes (OBC) and Scheduled Castes and Tribes) were given exclusive access to a certain portion of government jobs and slots in public universities, and recommended changes to these quotas, increasing them by 27% to 49.5%.This commission was set up under article 340 for the purpose of articles like 15 and 16.[15]

Recommendations of this commission regarding reservation-
Recommendations of Mandal Commission regarding reservations of Scheduled Castes and Scheduled Tribes are that India constitutes of 22.5% SC and ST population and accordingly 22.5% reservation has been made for them in all services and public sector under Central Government and reservation in states should be according to their population.

For Other Backward Classes recommendations for reservation is that they are 52% of total population in India. Accordingly 52% of all the posts under Central Govt should be reserved for them but in view of Supreme Court Judgments it has been held that total quantum of reservation should be below 50%.In view of this proposed reservations for OBC and ST and SC together should be less than 50%.Therefore commission has assigned 27% reservation for them.[16]

With the above general recommendation regarding the quantum of reservation, the Commission proposes the following over-all scheme of reservation for OBCs:-
(1) Candidates belonging to OBCs recruited on the basis of merit in an open competition should not be adjusted against their reservation quota of 27%.

(2) The above reservation should also be made available to promotion quota at all levels.

(3) Reserved quota remaining unfilled should be carried forward for a period of three years and deserved thereafter.

(4) Relaxation in the upper age limit for direct recruitment should be extended in the same manner as done in case of SCs and STs.[17]

(5) A roster system for each category of posts should be adopted by the concerned authorities in the same manner as presently done in respect of SC and ST candidates.[18]
The above scheme of reservations should be applicable to all recruitment to public sector undertakings both under the Central and State Governments, nationalized banks, private sector undertakings which have received financial assistance from the Government, universities and affiliated colleges are covered under this scheme of reservation.[19]

Educational Concessions given by Mandal Commission-Recommendation of Mandal Commission is that seats should be reserved for OBC students in all scientific, technical and professional institutions run by the Central Government as well as State Governments. This reservation will fall under Article 15(4) of the Constitution and the quantum of reservation should be the same as in the Government services, i.e., 27%. Those States which have already reserved more that 27% seats for OBC students will remain unaffected by this recommendation.[20]

Judicial Approach towards Reservation
Indian Judiciary has pronounced some Judgments upholding reservations and some judgments for fine tuning its implementations. Lot of judgments regarding reservations have been modified subsequently by Indian parliament through constitutional amendments. Some judgments of Indian judiciary has been flouted by state and central Governments. Given below are the major judgments given by Indian courts and reflecting the constitutional status of reservation.

In Ajay Hasia v. Khalid Mujib[21] the regional engineering college made admissions of the candidates on the basis of oral interview after written test .The test of oral interview was challenged on the ground that it was arbitrary and unreasonable because high percentage of marks were allocated for oral test and candidates were interviewed only for 2-3 minutes. The court struck down the rule prescribing high percentage of marks for oral test reallocation of one-third of the total marks was plainly arbitrary and unreasonable and violative of article 14 of the constitution. It is said that the oral interview test cannot be regarded a very satisfactory test for addressing and evaluating the caliber of candidates as it is subjective and based on first impression and its result is influenced by many uncertain factors and it is capable of abuse. It cannot be the exclusive test .It should be resorted to only as an additional or supplementary test and must be conducted by persons of high integrity, caliber and qualification. The court suggested that the interview be recorded in order to judge whether it was conducted in arbitrary manner. In the instant case a large number of candidates were admitted on the basis of high marks obtained on the interview although they had obtained low marks at the written test but the court declined to quash admissions in view of lapse of 18 months when students has almost completed three semesters. A mere suspicion that some candidates had obtained high marks in interview but very low marks in written test did not establish malafide on the part of selectors.

In D.V. Bakshi v. Union of India[22] the petitioners challenged the validity of the rule allotting 100 marks with 50 pass marks for oral test on the ground that it gives arbitrary powers to the authorities to pick and choose the candidates. The court distinguished the Ajay Hasia’s case with the present case and held that allotment of maximum marks for oral test is not arbitrary particularly in case of selections of professionals .The test which may be valid for competitive examinations or admissions to educational institutions may not hold good where it concerns selection for appointments in public services. The test; aid down in Ajay Hasia’s case cannot apply in matter of grant of license as a Custom House Agent. No hard and fast rule can be laid down in this behalf as much would depend on the nature of performance expected for the responsibility to be handled by the candidate after his selection. The duties, responsibilities and functions of a Custom House Agent are very special and demanding not only a high degree of probity and integrity but also intellectual skills, adaptability, judgment and capacity to take prompt decisions in conformity with the law, rules and regulations .Thus, there is justification for an oral test prescribing 100 marks with 50 percent as passing marks in selecting such persons. [23]

Relation between Reservation and Principle of Equality-
Equality has been promised by State under Article 14 of the Indian Constitution and Article 14 is considered as the soul of the Indian Constitution because without equality no country can be considered as republic and it is the need of equality which have forced human beings to come under state so that they can get security, equal protection of law and equality in all aspects. In our Preamble we have adopted the word equality from French Revolution which itself shows the aims of our Constitution and Article 14 further is a step forward towards the accomplishment of that aim. Equality itself means that like should be treated alike and not unlike should be treated like.[24]That is why Article 14 permits reasonable classification between likes and unlikes so that unlike should be given special treatment to bring them on the equal footing with the likes and in fact identical treatment in unequal circumstances would itself amount to inequality.[25]Goal of equality will not be considered to be achieved till everyone will be on the equal footing. Thus idea to attain equality has given birth to the concept of reservation or affirmative action. Reservation is a special treatment given to the unlikes till they come on the equal footing with the likes in the society. Reservation is a concept developed with a view to provide special help to the weak so that they can overcome their weakness and can compete with the strong. In landmark judgments like D.V. Bakshi v. Union of India[26] and Air India v. Nargesh Mirza[27] Supreme Court has given wonderful Judgments which proves that which has proved that inequality anywhere will never be tolerated and therefore Judgments of these cases have established new landmarks in the concept of equality. Equality is a state of complete justice and in order to attain it reservation is a powerful remedy. Reservation have proved to be highly successful in many countries for e.g. U.S. has affirmative action for blacks and in various other countries reservation is playing major role in narrowing the gap between different classes.

In the historic Mandal Commission case[28] the Supreme Court by the 6-3 majority has held that the sub classification of the backward classes into more backward classes and backward classes can be done for the purpose of Article 16(4).But as a result of sub classification the reservation cannot exceed more than 50 percent. The distinction should be based on the degree of social backwardness. In fact such classification would be necessary to help the more backward classes otherwise those of the Backward Classes who are little more advanced than the more backward classes might take away all the seats. “Thus reservation and equality are two sides of the same coin and if equality is the aim then reservation is the best possible way to reach that aim”.[29]

Conclusion
Indian Constitution is one of the best and largest written Constitution of the world. Article 14 of our Constitution is itself soul of Indian Constitution and even Article 22 is secondary to it because what is the meaning of life when there is no equality. Indian reservation system has been a major success in improving the position of the Backward Classes and past decades have shown remarkable development in position of Backward and Oppressed Classes in India. Though our reservation system is an outcome of huge amount of research by commissions and Government agencies like Mandal Commission etc but even then somewhere our system is lacking on the applicability part also some fault are there in identification of the Backward Classes because despite of giving so many years of reservation their position have not been developed to that extent as it should have been. Our present reservation system is caste based and it has been seen that the upper segment of each class who are forward then the others are developing and are using maximum benefit of reservation and also now they have attained both the economic equality as well as social equality because they are economically sound now while the lower segment of the same cast are still unaware of their rights of reservation and they are still backward. In order to equate this inequality which is there in the same caste, the reservation policy should be based on the economic condition basis so that each and every individual of this country who is backward socially as well as economically will get equal chance to develop. Many castes are now economically forward but still they socially backward. We need some new methods other than caste based reservations in order to narrow this gap and to increase them socially.OBC reservation percentage should increase from 27% because they are 52%[30] of our population while ST and SC’s should get less reservation because they are 22.5% of our population but still they have 22.5%[31] of seats reserved for them.

Bibliography
1. Pasricha Seema .Caste Based Reservation In India.(New Delhi: Deep And Deep Publications Pvt. Ltd.) 2006.
2. Pandey J.N.The Constitutional Law of India.(Allahbad:Central Law Agency) 2009.
3. Shukla V.N. Constitution of India.(Lucknow:Eastern Book Company) 2007.
--------------------------------------------------------------------------------
[1] V.N.Shukla,Constitution of India,(Lucknow:Eastern Book Company)2007 p 37.
[2] Satish Chandra v. Union of India, AIR 1953 SC 250.
[3] V.N.Shukla,Constitution of India,(Lucknow:Eastern Book Company)2007 p 38.
[4] Builders Association of India v. Union of India,(1989)2 SCC 645.
[5] V.N.Shukla,Constitution of India,(Lucknow:Eastern Book Company) 2007 p 39.
[6] AIR 1974 SC 555.
[7] J.N.Pandey,Constitutional Law Of India,(Allahbad:Central Law Agency) 2008 p 78.
[8] AIR 1983 SC 130
[9] J.N.Pandey,Constitutional Law Of India,(Allahbad:Central Law Agency) 2008 p 80.
[10] AIR 1983 SC 473
[11] R.D. Shetty v.Airport Authority, AIR 1979 SC 1628
[12] J.N.Pandey,Constitutional Law Of India,(Allahbad:Central Law Agency) 2008 p 79.
[13] Available at http://en.wikipedia.org/wiki/Reservation_in_India visited on August 4,2010
[14] Available at http://www.theotherindia.org/caste/who-are-the-obcs.html visited on August 2,2010
[15] Available at http://www.wikipedia.org/wiki/Mandal_Commission visited on August 2,2010
[16] Available at http://www.wikipedia.org/wiki/Mandal_Commission visited on August 2,2010
[17] Available at http://www.theotherindia.org/caste/who-are-the-obcs.html visited on August 2,2010
[18] Available at http://www.theotherindia.org/caste/who-are-the-obcs.html visited on August 2,2010
[19] Available at http://www.wikipedia.org/wiki/Mandal_Commission visited on August 2,2010
[20] Available at http://www.wikipedia.org/wiki/Mandal_Commission visited on August 2,2010
[21] AIR 1981 SC 487
[22] (1993) 3 SCC 663
[23] (1993) 3 SCC 663
[24] J.N.Pandey,Constitutional Law Of India,(Allahbad:Central Law Agency) 2008 p 75.
[25] Abdul Rehman v. Pinto, Air 1951 SC 41.
[26] (1993)3 SCC 662
[27] AIR 1981 SC 1829
[28] Indira Swahney v. Union of India ,1992 supp. (3) SCC 217
[29] J.N.Pandey,Constitutional Law Of India,(Allahbad:Central Law Agency) 2008 p 128.
[30] Available at http://www.wikipedia.org/wiki/Mandal_Commission visited on August 2,2010
[31] Available at http://www.wikipedia.org/wiki/Mandal_Commission visited on August 2,2010

The  author can be reached at: sujay_ilnu@legalserviceindia.com

Follow the Procedure Below To Submit Your Articles

Submit your Article by using our online form Click here
Note* we only accept Original Articles, we will not accept Articles Already Published in other websites.
For Further Details Contact: editor@legalserviceindia.com

File Your Copyright - Right Now!