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Published : October 03, 2012 | Author : resham
Category : Constitutional Law | Total Views : 12559 | Rating :

  
resham
resham jain BALLB(H), 4th year Amity law school Amity university
 

Dynamics of Reservation Policy – Towards a More Inclusive Social Order

Reservation and Inclusive Growth have been among the most intensely debated issues surrounding public policy in India. Women Reservation Bill or Reservation for Religious Minorities, LPG or New Economic Policy, Poverty Line or Social Security, MNREGA or Right to Education, Food Security Bill or Health Insurance, National Social Assistance Programme are some of the key initiatives.

The issues evoke noble sentiments or high passion among both proponents and opponents and thus, have given rise to plenty of public debates, scholarly writings and research, frequent demonstrations and myriad law suits. The last is truer about the reservation than inclusive growth as the term has just entered the world of planning, policy debates and academic discourse. However, careful empirical analysis of the concepts and their consequences could lead to a more reasoned evaluation of their desirability for over all national development.

Hence we need to examine the background and conceptual development of the Reservation Policy and of the policy of Inclusive Growth. This necessitates a critical look at the theories of caste, discrimination, deprivation, social justice, compensatory justice, reservation, affirmative action, equity, inclusion, the issues of planning, economic growth, human development, poverty, inequality, employment, production, consumption, income, expenditure and their equitable spread. We shall also explore the mutual relationship, if any, between the policy of reservation and the aim of achieving an inclusive growth.

Reservation policy or the policies of affirmative action or preferential treatment and compensatory justice are one of the many tools adopted to promote positive equality. The theory of positive equality was developed to deal with the self-destructive social conflict between the dominant and the depressed classes and the realization that such destruction could only be avoided by working towards a more egalitarian society based on equality and non-discrimination. The concept is generally understood as involving three aspects: positive discrimination, reverse discrimination and compensatory discrimination. Positive discrimination denotes providing special treatment to those who are susceptible to exploitation. Reverse discrimination is a sort of vindictive measure, which means discrimination against those who had discriminated. Compensatory discrimination involves adoption of measures to safeguard the interests of historically disadvantaged sections of people. Affirmative action and reservation policy are measures of distributive justice that endeavor to remedy such inequalities within a liberal framework. It is a social policy of the Indian state to ensure the participation and empowerment of the historically excluded section of the Indian society – through the mechanism of positive discrimination by way of fixing of quota in the electoral, public employment and educational institutions.

Policy Of Reservation
The policy of reservation was a measure for the emancipation of the socially and economically backward people of the nation known as Scheduled Castes (SC), Scheduled Tribes (ST) and the hugely debated Other Backward Classes (OBC). It was conceived and advocated not as merely a tool for allocation of few seats or a percentage based quota, which it was in fact, but a mission to evolve a strong and powerful nation based on social harmony wherein every citizen of the nation, irrespective of caste, creed, religion, sex etc. could have an open, impartial and abundant opportunity. The policy is often explained as positive or protective or compensatory discrimination in favour of the backward classes for the purpose of mitigating inequalities and ensuring justice. Compensatory justice aims at providing counter-balancing benefits to those individuals who have been wrongfully injured/ deprived in the past so as to bring them up to the level of wealth and welfare which they would have had if they had not been disadvantaged. Reservation is also called ‘Discrimination in Reverse’ or Reverse Discrimination. This terminology connotes that reservation, which works as a protection to the reserved categories i.e. scheduled castes, scheduled tribes and other backward classes, acts as a reverse discrimination against the upper castes. In fact, reservation seeks to make the constitutional promise of equality of opportunity a reality. The three concepts, that of equality, individual and group, are central to the debate on reservations. The concept has led to different competing ideas on social justice, merit and group identity, which are very much relevant in any discussion on reservation.

Inclusive Growth
Inclusive growth is a broad concept covering economic, social, and cultural aspects of development. It is often used interchangeably with a suite of other terms, including ‘broad-based growth’, ‘shared growth’, and ‘pro-poor growth’. A growth, which is, broad-based across sectors, and inclusive of the large part of the country’s poor, disadvantaged, deprived and excluded sections of citizens. Some scholars treat ‘inclusive growth’ as synonymous with ‘equitable development’. In their framework, there is similarity between growth and equity. Economic growth can create opportunities for wider participation of people while equity can help to raise economic growth by harnessing physical and human resources on a broader scale.

Inclusive growth strategy suggests that people of all sections and regions get an opportunity to participate in the growth process, which implies engendering the policy design that includes the people who get excluded in normal course as also to make a variety of provisions and services accessible to all sections including those who got excluded so far. There are sections and regions which have remained relatively backward. While practically all sections and all regions in India might have advanced in absolute terms, growth experience has been widely different across sections/regions. Per capita income of say Bihar, in absolute terms, may have gone up but it has steadily declined in comparison to that of the richer states.

There are certain essential attributes and inter-related components of inclusive growth in India. These are opportunity, capability, access, security, agricultural growth, employment generation, poverty reduction, investment in social sector, and reduction in regional and other socio-economic and sectoral disparities. Inclusive Growth is a process in which economic growth measured by a sustained expansion in GDP, contributes to an enlargement of the scale and scope of all four dimensions mentioned above.

With the stress on Inclusive growth during the Eleventh Five Year Plan, it seems that a new and long overdue era of inclusive economic development with exclusive emphasis on inclusive growth has arrived in India. It also implies that the development and delivery of assured and better conditions and opportunities for the growth of all, without neglecting any segment of the Indian population has become the utmost priority. This was reflected in the first address of the President of India to the 15th Lok Sabha. Introducing the new government agenda, the President of India described the framework of the government’s overall action plan to be an “expansion and deepening of the ‘inclusive growth’ model of development” The model was first spelt out in the Eleventh plan Approach Paper suggestively titled as “Towards Faster and More Inclusive Growth” in 2004 and was further elaborated in volume I of the Eleventh Five Year Plan 2007-2012 specifically subtitled: “Inclusive Growth”. It heralded the arrival of a new paradigm: the paradigm of Inclusive Growth. The paradigm involves fundamental and at times, radical changes in the very formulation of the required patterns of growth as also in the conventional economic models of distributive justice. The inclusiveness in growth necessitates equitable distribution of benefits of growth to all sections of the society. Inclusive growth may be defined as “the process and the outcome where all groups of people have participated in the organization of growth and have been benefited equitably from it”. (UNDP, 2008). It can be achieved by “focusing on expanding the regional scope of economic growth, expanding access to assets and thriving markets and expanding equity in the opportunities for the next generation of Indian citizens no matter who they are or where they live” (World Bank, 2006).

The Policy Perspective
Indian society is characterized by its highly rigid caste based hierarchical structure, with its ascending order of privileges and descending order of disabilities, with an overwhelming majority of it still being backward – socially, economically, educationally, and politically. Though, all these categories are together known by the generic term ‘backward classes’, the nature and magnitude of their backwardness are not the same. Although each caste, except the uppermost, suffers from the unequal and hierarchal positioning, it is the ‘untouchables’, referred to officially as the Scheduled Castes (SCs) – which have and continue to suffer the most. Historically they were denied the right to property, business, education, and all civil, cultural and religious rights, except manual labour and service to castes above them. They also suffered from residential segregation and social isolation. Most social scientists and sociologists have not been able to agree on the origin and growth of the unique institution of caste in India. Nonetheless it is usually believed that the varna system divided the society into four classes/ groups- Brahmanas, Kshtriyas, Vaishyas and the Shudras in the early vedic age and they had distinctly defined occupations: (Rigveda– Purush Sukta, Gita). With the passage of time, the varnas turned into castes and the Indian Society got divided into numerous castes/sub-castes. Gradually, caste grewinto a rigid and complex system and thus also became the cause of social discrimination and economic inequalities. The lowest castes were treated as ‘untouchables and they were forced to remain confined to manual labour and service to the castes above them which resulted in their social exclusion. Groups like the Adivasis (meaning indigenous) – referred to officially as Scheduled Tribes (STs) – suffered from isolation, neglect, underdevelopment and exclusion due to their geographical and cultural isolation. In their case, exclusion came in the form of denial of the right to resources and displacement induced by economic development. The Post Independence Indian state’s approach towards these groups was reflected in the preamble and key provisions of the country’s constitution: the principles of ‘non-discrimination and equal opportunity’, and ‘the directive to the state to take steps to ensure non- discrimination and equal opportunity in practice’. The approach involved three main elements, namely: (1) legal and other safeguards against discrimination; (2) pro-active measures in the field of employment and education under the state and state-supported sectors, in the form of the reservation policy; and (3) welfare measures in informal sector in agriculture, and private industry, as part of the general developmental and empowerment measures

Genesis Of Reservation In Modern India
Reservation policy has remained an integral part of public policy of both the British and Princely India. A policy that was formulated by the British to provide representation to Indians in the administrative set up was later extended to recruitment, promotion, and to educational institutions. The successive democratic governments continued to pursue this policy while effecting some cosmetic changes to it now and then. Reservations in favour of Backward Classes (BCs) were introduced long before Independence in a large area, comprising the Presidency areas and the Princely States south of the Vindhyas. Chhatrapati Sahuji Maharaj, Maharaja of Kolhapur in Maharashtra introduced reservation in favour of backward classes as early as 1902 to eradicate poverty from amongst them and to give them their due share in the State administration. The notification of 1902 created 50 per cent reservation in services for backward classes/communities in the State of Kolhapur. This notification stands out as the first Government Order providing for reservation for the welfare of depressed classes in India.

The formal demand for reservation of government jobs was made as early as 1891 with an agitation in the princely State of Travancore against the recruitment of non-natives into public service overlooking qualified native people. Reservations were introduced by the British in 1908 in favour of a number of castes and communities that had little share in the administration. Madras Presidency introduced the Communal Government Order in which reservation of 44 per cent for non-Brahmins, 16 per cent for Brahmins, 16 per cent for Muslims, 16 per cent for Anglo-Indians/ Christians and eight per cent for Scheduled Castes were fixed in 1921. The native state of Mysore (1921) and the Bombay Presidency (1931) were others to follow suit. These patently communal reservations were challenged in Venkataramana Vs. State of Madras (AIR 1951 S.C. 29) wherein the Court held that ‘this ineligibility created by the communal Government Order (regarding Brahmins) does not appear to us to be sanctioned by the clause (4) of Article 16 and is an infringement of the fundamental rights guaranteed to the petitioner as an individual citizen under Article 16(1) and (2) of the Constitution. The Court, however, did not upset the whole selections but only directed that the case of the applicant be considered without reference to the Government Order. The States still persisted in taking advantage of the situation, when the Mysore Government classified ‘non-brahamins’ as ‘backward classes’ and the Mysore High Court (A.I.R. 1954 -Mysore 20) upheld the said classification and this unjust order of Government of Mysore remained valid till the time Supreme Court in M.R. Balaji V/s. State of Mysore (A.I.R. 1963 S.C. 649) held that no section of citizens shall be treated as ‘backward classes’ simply because it is not so advanced as the most advanced section of the society. The ‘backwardness’ ‘should be social as well as educational and caste cannot be the ·sole criterion as the phrase used is ‘backward classes’ and not “backward castes’. (Triloki Nath Tikku V/s. State of Jammu and Kashmir, 1969, vol. I.S.C.W.R. 489). The court further held that if the reservation is excessive (i.e. 60% -in this case) then it is plainly inconsistent with the concept of Special provision allowed by the Article 16(4) of the Constitution. The matter again became matter of controversey in Chitralekha V/s. State of Madras (1965 S.C.A., Vol. 1,132) wherein the reservation of 18 per cent and backward classes

30% was held to be valid but the court has not since allowed the Carrying forward of the non-utilized part to next year, as allowing carrying forward will mean excessive reservation in such year virtually denying reasonable opportunity to the members of other communities. (T. Devadasan V/s. Union of India, 1965 LLJ 560). The Supreme Court has, however, refused to confine the benefit of Article 16(4) of Constitution to the initial appointment only but held that the reservation applies afterwards also. (General Manager V/s. Rangachari 1962, Vol. 2, S.C.R. 586). The Backward Classes movement first gathered momentum in South India particularly in Tamil Nadu. The continuous efforts of some of the social reformers of the country viz. Rettamalai Srinivasa Paraiyar, Ayothidas Pandithar, Jyotiba Phule, Chhatrapati Sahu ji Maharaj, Babasaheb Ambedkar and others, contributed substantially towards the destruction or lowering of the wall created by the upper classes between them and the untouchables.

The Indian constitution prohibits discrimination on the grounds of religion, race, caste, sex and place of birth. While providing equality of opportunity for all citizens, the constitution contains special clauses “for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”. Separate constituencies were allocated to Scheduled Castes and Tribes to ensure their political representation for 10 years, which have been subsequently extended every 10 years through constitutional amendments. It was realized by the constitution-makers that because of the accumulated disadvantages of the backward classes, it is only through sponsored mobility programmes that they could participate in independent India’s national life on anything like terms of equalitywith other groups. In the absence of such programmes India’s commitment to advance the historically backward groups to the level of the advanced could only remain a pious goal. In 1953, Kalelkar Commission was established to assess the situation of the socially and educationally backward classes. The report was accepted as far as Scheduled Castes and Scheduled Tribes were concerned and schedules were amended accordingly. However, its recommendations for OBC’s were rejected. More than twenty five years later, in 1979 a commission popularly known as the Mandal Commission was established to assess the situation of the socially and educationally backward classes/ castes. The commission evolved a multi-pronged criterion to indentify backwardness but didn’t have exact figures for the Other Backward Class (OBC), and used the 1930 census data, further classifying 1,257 communities as backward, to estimate the OBC population at 52 per cent. The commission submitted its report in 1980, and recommended changes to the existing quotas, increasing them from 22 per cent to 49.5 per cent. A large number of castes were identified as backward in each state as a result of a country wide socio-educational survey covering 405 out of the then 407 districts with the help of bureau of economic and statistics of various states from February to June, 1980. A state-wise list of the eleven groups of the primitive tribes, exterior castes, criminal tribes, etc. contained in the Registrar General’s of India compilation of 1961 were culled and included in the commissions lists of OBCs. This was done on the premise that the social and educational status of these castes/communities was more or less akin to the SCs/STs. However, the set of eleven indicators (criteria), being caste-based, could not be applied to non-Hindu communities. In view of this, a separate set of three criteria was evolved for the identification of non-Hindu backward communities. On the basis of the available census data, the population of Hindu and non-Hindu OBCs was estimated to be 52 per cent of the total population of India. This was in addition to the population of SCs and STs which amounts to 22.5 per cent.

Reservation for SCs and STs was in proportion to their population i.e. 22.5 per cent. But as there was a legal obligation to keep reservations under Article 15(4) and 16(4) of the Constitution below 50 per cent, the commission recommended besides many other recommendations, a reservation of 27 per cent for OBCs in all government services as well as technical and professional institutions in the centre as well as in the state.

Almost after a decade, the Mandal Commission’s recommendations were implemented in Government jobs by the then Prime Minister Vishwanath Pratap Singh. As a consequence, student organisations launched nationwide agitations. A Delhi university student even attempted selfimmolation. The Government also fell. Interestingly, soon after, Narasimha Rao Government introduced 10 per cent separate reservation for Poor among Forward Castes in 1991 and next year i.e. 1992, Supreme Court upheld reservations to the Other Backward Classes in Indira Sawhney Case. However, the concept of creamy layer was also introduced. (In 1995), Indian Parliament inserted Art 16(4) (A) permitting reservation in promotions to the Scheduled Castes and Scheduled Tribes. Later, it was further amended to include consequential seniority by the 85th amendment to the Constitution of India in the year 2001.

In 1998, the Central Government conducted large nationwide survey for the first time to estimate economic and educational status of various social groups. There is substantial debate over the exact number of OBC’s in India, with census data compromised by partisan politics. The Supreme Court delivered a unanimous judgment on 12 August 2005, in the case of P.A. Inamdar & Others vs. State of Maharashtra & Others declaring that the State can’t impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges.

The government introduced the 93rd Constitutional amendment for ensuring reservations to other backward classes and Scheduled castes and Tribes in Private Educational institutions. This effectively reversed the 2005 August Supreme Court judgment. The Constitution Bench of the Supreme Court in M. Nagraj & Others Vs. Union of India & Ors upheld the constitutional validity of Art 16(4) (A), and 16(4) (B) as well as provision to Art 335 in 2006 and the same year reservations were introduced for Other Backward Classes in Central Government Educational Institutions and government employment.

The Supreme Court of India upheld the Government’s move for initiating 27 per cent OBC quotas in Government funded institutions (10 April 2008). The Court has categorically reiterated its prior stand that “Creamy Layer” should be excluded from the ambit of reservation policy. The Supreme Court has avoided answering the question whether reservations can be made in private institutions, stating that the question will be decided only as and when a law is made for reservations in private institutions.

It is difficult to see a pattern in the judicial approach to reservation. The effort to devalue ‘caste’ as a criterion has not been consistent and the political power as well as its concomitant benefits have been allowed to be channelized through traditional groups.

Quite remarkably, the Indian Supreme Court has also clarified that reservation is not a charity but a parity. It is not a charity since it is a compensation of the age-old injustice made to these communities. It is a parity because it is an effort to bring the unequal to a desired level with the equal and thereby making all as equals. This term was used by Justice Chenappa Reddy in the Supreme Court case of Akhil Bharatiya Shoshit Karmachari Sangh, Karnataka. He also further explained, “The backward classes are in search of aid. They need facility; they need launching; they need populism; their needs are their demands; the demands are matter of right and not of philanthrope they ask for parity; not charity.” (Indian Law Journal, 2007). He further added; “Therefore, we see that when posts whether at the stage of initial appointment or at the stage of promotion are reserved or other preferential treatment is accorded to the members of the scheduled castes and the scheduled tribes and other socially and economically backward classes, it is not a concession or privilege extended to them; it is in recognition of their undoubted fundamental right to equality of opportunity and in discharge of the constitutional obligation imposed upon the State to secure to all its citizens ‘Justice’-social, economic and political and equality of status and opportunity to assure the dignity of the individual among all citizens, to promote with special care the educational and economic interests of the weaker sections of the people to ensure their share in the power and participation on equal basis in the administration of the country and generally to foster the ideal of a “Sovereign, Socialist, Secular Democratic Republic.”

The ‘reservation policy’ is operative in three main spheres, namely appointment and promotion in government services, admissions to public educational institutions, and seats in Central, State and local legislatures.

The most important aspect of the reservation policy is related to the government services. Article 16 (4) of the constitution empowers the State to make “any provision for reservation in appointments, or posts in favor of any backward class of citizens”, and “provision for reservation in matters of promotion to any class or classes of posts, in the services under the State in favor of the SCs and STs.” In pursuing this provision, the Government made reservation for the SCs, STs and lately the OBCs in proportion to their share of population. There are also reservations in the promotion of employed persons. The government services included are those in the Government Civil Services, public sector undertakings, statutory and semi- Government bodies, and voluntary agencies which are under the control of the government or receiving grant-in-aid. At the central level, some services are however excluded from the reservation policy. These include, most prominently, defence and the judiciary. The constitutional provisions as modified and amplified from time to time, are as follows:

(1) Article 16(4), which empowers the state to make any provision for reservation in appointments or posts in favour of any backward class of citizens, which, in its opinion, is not adequately represented in the services under the state.

(2) Article 16(4A), which specifies that nothing in this article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the state in favour of the SCs and the STs which, in the opinion of the state, are not adequately represented in the services under the state.

(3) Article 16(4B), which specifies that nothing in this article shall prevent the state from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50 per cent, reservation on total number of vacancies of the year.

(4) Article 335, which specifies that the claims of the SCs and STs shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the union or of a state; provided that nothing in this article shall prevent the state from making any provision in favour of the SCs and the STs for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the union or of a state.

(5) Article 320 (4), which provides that nothing in clause (3) shall require a Public Service Commission to be consulted for the manner in which any provision under Article 16(4A) may be made or the manner in which effect may be given to the provisions of Article 335.

Though the reference to “consistently with the maintenance of efficiency of administration” in Article 335, has often led to controversies, the following issues merit consideration:

(1) The judiciary has often seen it in quantum terms, fixing an upper limit to the overall reservations for the three categories of backward classes.

(2) The hitherto judicial pronouncements and reservation controversies have not affected the reservations for the SCs and STs, in as much as they continue to have, at least on paper, reservation in public service more or less proportionate to their population in the state.

(3) There are notable addition of Articles 16(4A) and 16(4B) and Article 320 (4) as well as the new categories in terms of OBCs and Women. Reservation is accompanied by some other enabling provisions to increase the ability of the SCs, STs and OBCs to compete for government jobs. These include the relaxation of minimum age for entry into the service, relaxation in the minimum standard of suitability (subject to a required minimum qualification), the provision of pre-examination training, separate interviews for these categories and representation of people with these backgrounds on selection committees.

The second most important aspect of reservation policy relates to education. Article 15 (4) of the constitution empowers the State to make special provision for the educational advancement of the SCs and STs recently also extended to the OBCs. In pursuing this provision, the State reserves places for the SC and ST students in educational institutions, including all colleges run by the Central or State governments and all government-aided educational institutions. This is also supported by a number of financial schemes, including scholarships, special hostels for the SC, ST and OBC students, fee concessions, grants for books, and additional coaching.

The third most important sphere of the reservation policy relates to representation in Central and State legislatures. Under Articles 330, 332 and 334 of the Constitution, seats are reserved for the SCs and STs in the Central legislature and State legislatures in proportion to the population of these groups. Similar reservations are provided for women and the OBCs in both urban and rural local level bodies at district, Taluk and village level. The reservation of seats is complemented by statutory provisions to enhance political participation of the SCs and STs; smaller election deposits are required from members of these groups. The reservations in political representation also had a time limit. They were initially provided for a ten-year period, with a provision for extension every ten years. However, in the areas of government services and education, it is left to the government to use reservations up to the point where it is considered that discrimination against the SCs and STs is no longer a major problem. At times, the application of creamy layer rule in the case of SCs and STs on the pattern of OBCs is advocated. However, the Supreme Court in Indra Sawhney’s case has ruled that the objective of reservation for SCs and STs is on different footing than that of the Backward Classes; hence, the principle of creamy layer cannot be applied in their cases. It is further suggested that the affluent castes out of Scheduled Castes should be discouraged so that fruit of reservation could reach the remaining deprived castes. In the name of social engineering, certain state governments have divided the Scheduled Castes into ‘Dalits’ and ‘Maha Dalits’. Similarly, the Backward Classes have also been divided into three categories, i.e. backward, more backward and most backward. There is a process of ‘reverse sanskritization’ also wherein more and more groups/communities are claiming to be included into OBCs or SCs and STs. The case of Malas and Madigas in Andhra Pradesh, the Jats in Delhi and the Gujars in Rajasthan are some noteworthy struggles. The New Tribal Policy document (2006) has acknowledged the redundancy of the existing criteria and also stressed the need for a process “descheduling” so as to exclude those communities who have by and large caught up with the general population”.

The Central Government has developed an administrative mechanism to regulate, monitor and implement the reservation policy. The main institutions involved are the Department of Personnel and Training (DoPT), the National Commission for the SCs and STs, the National Commission for the OBCs, the Committee of Parliament on Welfare of the SCs and STs, the Ministry of Social Justice and Empowerment, and the Ministry of Tribal Affairs. Recently, the Ministry of Minority Affairs has also been established to look into the issues of welfare of the minorities. The DOPT regulates and monitors the reservation policy in government services. Its main function is to enforce the rules and monitor the fulfilment of the quotas. It is supported by administrative units within each Ministry and/or government supported organisation.

The National Commissions for the SCs, the STs and the OBCs have the responsibility for investigating specific complaints received from the employees belonging to these groups regarding appointment and promotion matters. Similarly, the Commissions have the power of a Civil Court, and can call employers for enquiry. They also prepare annual reports which are to be discussed in the Parliament every year. The Ministry of Social Justice and Empowerment and the Ministry of Tribal Affairs are responsible for the all-round development of the SCs and STs, and carry out various schemes related to education and economic development. The Committee of Parliament on Welfare of the SCs and STs, is entrusted with examining the progress regarding the legislative representation of the SCs and STs, and also making recommendations for effective implementation of such policies and programmes.

Despite being one of the oldest national policies, the reservation policy is still based on Instructions and Office Memorandums (O.Ms). In government offices, these O.Ms are being supplied in loose forms and sometimes, such O.Ms. do not reach the respective offices. The O.Ms have been issued, either under political compulsion or most of the times to keep pace with judicial pronouncements. In few cases, the O.Ms have been issued without looking to the previous one on the subject which have caused confusion and become the matter of litigations. The implementing authorities, sometimes do not give sufficient importance to the reservation rules, they being subordinate legislation. It is suggested that the rules

regarding reservation policy should be codified in a systematic manner.

Assessment / Evaluation
Over the years, it has been noted that there has been a considerable increase in the share of the SCs and STs in government employment and educational institutions. Reservations in the legislature have also provided a space for the SCs and STs in the executive and the decision-making process. The formal reservation policy in the government sector and the informal affirmative action policy programmes have also contributed to an improvement in the human development of the SCs and STs. However, the rate of improvement has been rather slow, and disparities in human development attainment between the SCs, STs and OBCs on the one hand, and the rest on the other, continue even today.

The compensatory discrimination policies or reservation policy entails systematic departures from norms of formal equality (such as merit, evenhandedness and indifference to ascriptive characteristics). These departures are justified in several ways:

First, preferential treatment may be viewed as needed assurance of personal fairness, as guarantee against the persistence of discrimination in subtle and indirect forms.

Second, such policies are justified in terms of the beneficial results that they will presumably promote: integration, use of neglected talent, more equitable distribution, etc. With these two-the anti-discrimination theme and the general welfare theme – is entwined a notion of historical restitution, or reparation, to offset the systematic and cumulative deprivations suffered by lower castes in the past.

Undeniably, compensatory discrimination policies have produced substantial redistributive effects. Reserved seats provided a substantial legislative presence, and a notable flow of patronage, attention and favourable policy to the SCs and STs. The reservation of jobs has given to them, a sizable portion of the earnings, the security, information, patronage and prestige that goes with government employment beneficiary groups. There has also been a considerable redistribution of educational opportunities to these groups. Moreover, ‘Preference programmes are integrative in several ways. For instance, in the office setting, there are relations of reciprocity and interdependence. Further, the broad participation afforded by reserved seats and reserved jobs is, for many, a source of pride and warrant of security. At the policy-making level, reserved seats have secured the acceptance of Scheduled Castes and Scheduled Tribes as groups whose interests and views must be taken into account. In every legislative setting they are present in sufficient numbers so that the issues affecting these groups remain on the agenda

It was expected that, education and jobs would and they have and do help weaken the stigmatizing association of the excluded/backward sections with ignorance and incompetence although they also in the short run, experience rejection in the offices, hostels and other settings into which they are introduced by preferential treatment resulting in another kind of exclusion instead of inclusion and mainstreaming. But that is a short run exclusion only. At times, it is argued that this policy has encouraged a tendency to absolve others of any responsibility for their betterment on the ground that it is a responsibility of the government. The pervasive overestimation of the amount and effectiveness of preferential treatment reinforces the notion that enough (or too much) is already being done and nothing more is called for. It has undeniably succeeded in accelerating the growth of a middle class within these groups-who are urban, educated and largely in government service. Members of these groups have been brought into central roles in the society-to an extent unimaginable a few decades ago. There has been a significant redistribution of educational and employment opportunities to them; a sizable section of these groups can utilize these opportunities and confer advantages on their children; their concerns are firmly placed on the political agenda and cannot easily be dislodged or even neglected. By and large, the policy can be credited with producing a self-sustaining dynamic of inclusion. However, during the course of the implementation of India’s reservation policy, some problems have also become apparent. First, its success has been uneven across sectors and departments. Generally speaking, participation of the SCs and STs is close to their population shares in lower categories of jobs, but much lower than their shares in high-grade positions.

Due to indirect resistance, the extension and spread of reservation policy to several government sectors has also been slow. Another issue is of extending the formal affirmative action policy to private sector employment and private educational institutions. There is evidence to suggest that there has been a large increase in the enrolment of the SCs and STs in educational institutions. In 1981, the proportions of the SCs and STs among total graduates were estimated to be 3.3% and 0.8% respectively, far below their shares in the total population.

By the late 1990s, however, these figures had risen to 7.8 per cent and 2.7 per cent. Nevertheless, these figures are still low, compared with the groups’ shares of total population. There is also evidence that the enrolment shares of the SCs, STs and OBCs are much lower in preferred educational institutions.

But one cannot overlook the fact that quotas go unfulfilled, at least in part, because of the insensitive at best and obstructionist at worst behavior of bureaucracies and professions particularly in the higher echelons. Guhan (2001)has noted that, a whole set of mechanisms are used to keep the SCs from climbing the hierarchy ladder: ad hoc and temporary positions; elimination through evaluation processes such as personal interviews and personality tests; and biased entries in confidential records. If standards are relaxed, it is due to personal biases and not institutional mechanisms and there can be no presumption that biases work only in one direction.

Similarly, seats are reserved for the SCs and STs in the Central and State legislatures in proportion to their shares of population. Thus in 2004, 75 (13.8%) of the 543 seats in the Lok Sabha were reserved for the SCs and 41 (7.6%) were reserved for the STs. Of the total number of seats in the Vidhan Sabhas (State legislative assemblies), more than 2000 seats were reserved for the SCs and STs. However, these figures are still based on the population shares of the SCs and STs in 1981, and there has been delay in updating the shares on the basis of figures from the 2001 census, which puts the population shares of the SCs and STs at 17.0 per cent and 8.5 per cent respectively. This indicates that both groups continue to suffer from under-representation in the Central and State legislatures. However, studies conducted to assess the impact of reservation at the grass roots have shown that reservation for the SCs, STs, OBCs and w men in the panchayati raj makes a difference. The studies suggest that both women and the backwards invest more in what women and the deprived seem to want e.g. water for women, goods in SC hamlets for the SCs and so on. The studies also suggest that, given the difficulty of targeting public transfers to specific groups in an otherwise decentralized system, reservation may be a tool to ensure not only adequate representation but also adequate delivery of local public goods to disadvantaged groups. They negate scepticism founded on anecdotes or prejudice that women or the deprived/ excluded ones are not capable of being independent leaders. These researches show that, whatever the process underlying the effects may be these leaders from the excluded sections do make a difference on the ground and correcting imbalance in political agency does result in correcting inequities in other spheres as well. Moreover, currently, the reservation policy applies to government and government supported sectors only, and excludes the private sector. However, it is estimated that more than 90 percent of the workers from the excluded groups are employed in the private or/and unorganized sector, and such workers lack protection against discrimination. Similarly, all private educational institutions are also excluded from the reservation policy. The government has set up a Group of Ministers to develop a consensus between government and the private sector regarding the adoption of affirmative action policies in the private sector. Infact, the constitutional provisions for reservations and related affirmative actions are intended to create conditions for the social advancement of the disadvantaged groups for their integration into the mainstream society, and participation in India’s social life and opportunity structure on equal terms with the historically advantaged groups. In practice, however, the state has been in a dilemma of choosing between its alternatives. This is mainly because of the tenacious hold of traditional India’s prejudices of hierarchy and inequality on the state and its bureaucracy; and partly because of the incorporation of the special dispensation provisions into a regime of constitutionally guaranteed rights, in particular rights to formal equality. The problem is confounded by political interventions, judicial interpretations and politicization of these provisions. Even the reports of the statutory/ constitutional commissions/ committees are irregular and late, too brief and sketchy as to capture the problems of the disadvantaged sections; they do not provide any state wise data on education and employment and contain hardly any data that can be used by the states and concerned individuals and social groups for the amelioration of the condition of these sections. This is despite the fact that the commissions have the required facilities at its disposal. Predictably, the reports and the importance attached to them by the government of India are routine and ritualistic. If the commission cannot collect the relevant data, at least the state in its own interest, should endeavour to systematically collect these data, including representation of the SCs, STs and OBCs in the central services. Without reliable database, updated from time to time, even official sensitivity cannot do much good for empowerment and inclusion.

The Rationale And Relevance
It is argued that Reservation or affirmative Action schemes are in place in many countries including USA, South Africa, Malaysia, Brazil etc. Reservation schemes have helped many - if not everyone from underprivileged and/or under-represented communities to grow and occupy top positions in the world’s leading industries. Reservation is a means to increase representation of hitherto under-represented caste groups and thereby improve diversity on campus. In India, the debate over desirability of meritocratic ideal initially was basically centered around the first argument, but in recent years we find that arguments somewhat related to the second point have also been put forward. On the first point supporters of reservation contend that:

(1) It cannot be said that backward classes lack merit.

(2) The second argument is that efficiency cannot be measured only in terms of marks a person gets in tests and exams.

The anti-reservationists argue that the caste based reservation will only perpetuate the notion of caste in society, rather than weakening it as envisaged by the constitution. Reservation is a tool to meet narrow political ends. Allocating quotas is a form of discrimination which is contrary to the right to equality. Reservations reduce elections to quid pro quos pitting castes against each other and fragmenting Indian society. They also complain that the policy of reservation has never been subject to a widespread social or political audit. Before extending reservation to more groups, the entire policy needs to be properly examined, and its benefits over a span of nearly 60 years have to be gauged.

They also go further to say that the 60% of India that is rural needs schools, health care and infrastructure in rural areas, not reservation in urban institutions. This policy of the government has already caused increase in brain drain and may aggravate further. Under graduates and graduates will start moving to foreign universities for higher education. They counter the logic of US researches by saying that they are not relevant since US affirmative action does not include quotas or reservations. Explicit quotas or reservations are illegal in the USA. In fact, even a points system to favor certain candidates was ruled unconstitutional. Nonetheless, a global India has to find ways through which the new generation youngsters of the excluded communities/ castes can be pushed forward towards upward mobility. Reservation is a sort of interventional support that ensures this transformation. A revolutionary transformation into the lives of these deprived masses has become a visible reality as a result of the constitutionally provided reservation system implemented since last 60 years.

The urgency of inclusive growth warrants the overruling perspective that governance undisputedly is the principal moving source and force of a stable and successful country or State. Its predominant features are no more just authority and power to rule but motivation and promotion, to make the people the included participants in an inclusive development and growth of the country not just as a political entity but a national community. If inclusive growth is to be the new futuristic destination of India, then governance must ensure to the reduction of disparities between the rich and the poor. This can happen only ‘if opportunities are created for the poor, and if government expenditure is utilized effectively’. Even the democratic governance and development in India has been highly exclusionary and non-participatory since its inception as an independent nation. The deficit in participatory governance at all levels centre, state or local-has led to the large-scale exclusion of masses from the development process. The Eleventh Five Year Plan has also emphatically reaffirmed the crucial need of improving the governance for the successful implementation of its public programmes. The multiple forms of deficit in democratic governance-pervasive nepotism, corruption, misappropriation of state funds, lack of transparency and accountability, and strong unwillingness to include the excluded as well as to delegate powers to the grass root organizations-have severely blocked the path of equitable socioeconomic growth of the country. To foster just and equitable socio-economic growth, the crucial need is to develop a participatory, public-centric, accountable, transparent, efficient and inclusive democratic governance at all levels.

At the economic plane, for more than four decades since its independence, India has remained under the development paradigm of welfare state with a planned economy. The socialistic ideal to provide social and economic justice to its entire population had been on its main development agenda.

For ensuring inclusive growth, Thorat advocates a reservation policy for the private sector, namely agriculture, private industry and service sector, and cooperative sector where more than 90 per cent of the SC and ST population are engaged. Such policy should be guided by three principles. It should be applicable to multiple spheres, have fixed quotas with some kind of monitoring mechanism and, depending on the nature of discrimination, use all three instruments – legal, fair access and compensation – in combination.

Indian writers supporting reservation in services contend that, “Efficiency in public services particularly in a welfare state is to be considered not only in terms of individual capacity but also in terms of systems efficiency. Broad-based participation of different segments of population particularly the disadvantaged ones are likely to augment system’s efficiency in a certain sense”. Hint of diversity notion can be found in the views of Justice Chinnappa Reddy in ‘Vasanth Kumar vs. state of Karnataka’: “The mere securing of marks at an examination may not necessarily make a good administrator. An efficient administrator must be one who possesses among other qualities the capacity to understand with sympathy and, therefore, to tackle bravely the problems of a large segment of population constituting the weaker section of the people…”.

Especially, in relation with 16(4), it is pointed out that: “Efficiency means, in terms of good government, not only marks in examination, but responsible and responsive service to the people. A chaotic genius is a grave danger in public administration. The inputs of efficiency include a sense of belonging and of accountability which springs in the bosom of the bureaucracy (not pejoratively used) if its composition takes in also the weaker segments of ‘We the people of India’…Sincere dedication and intellectual integrity – these are some of the major components of ‘merit’ and ‘suitability’ – not the degrees from Oxford or Cambridge, Harvard or Stanford or Indian institutions”.

Another criticism which has come up against the objective meritocratic ideal is the existence of corruption in Indian society and lack of any standards. It is contended that there are so many hidden reservations in appointments and that it is hypocritic to oppose the reservation policy. Even without reservations, people tend to appoint persons from their caste, community, group and relatives. Therefore it is a farce to say that reservations in any way destroy merit in India (Prasad, 1997, 112). The second contention is that the political and other institutions lack any fixed standards. Now and then, they lower the standards to accommodate temporary interests. (For instance, IIT, Kharagpur and many central University’s admission quota for the wards of the employee).

In order to achieve inclusive growth, besides reservation policy, more people-centered and pro-poor macro-polices need to be adopted. Since achieving inclusive growth is far more challenging than raising economic growth rate, it is argued that public policy should give priority to the ‘inclusive’ sectors to avoid lop-sided growth benefiting only few sections of the population. It is argued that growth and equity should be pursued simultaneously rather than the ‘growth first and equity next’ approach. There are strong social, economic, and political reasons for pursuing broader and inclusive growth. The importance of women’s economic and social empowerment, child development, and socially disadvantaged section like the SCs, STs and OBCs can and should not be ignored.

This is a consequence of the widely shared criticism that the planned developments over decades and recently adopted economic reforms have not achieved inclusive growth or equitable development. Inspite of the relatively satisfactory performance in some of the macroeconomic variables, post-reform period witnessed slow rate of reduction in poverty, low quality of employment growth, increase in rural-urban disparities, inequalities across social groups, and regional disparities. Rural India and social sector were, facing severe crisis and social exclusion was evident in neglect of regions, social and marginal groups, women, minorities, and children. It was realized that there is a need to have a broad-based and inclusive growth to benefit all sections of the society.

There are strong social, economic, and political reasons for achieving broader and inclusive growth. Socially, lack of inclusive growth leads to unrest among people. Economically, the measures which raise equity also promote economic growth. As politically no government in a democracy can afford to ignore large sections of workers and non-working population. It is increasingly realized that the process of development in India must become more socially and economically inclusive. If it is not inclusive it can generate very severe social tensions that can lead to disruption and violence. Thus, even for having a stable and democratic society one needs to have inclusive growth. The agenda of inclusive growth has to be given highest priority in order to reduce exclusion, social tensions, inequality and improve overall economic development. India will be a running tiger if growth is more inclusive and benefit all sections of society. India must adopt a growth paradigm that ensures broad-based improvement in the quality of life of the people, especially the poor, SCs/ STs, other backward castes (OBCs), minorities and women. The National Development Council (NDC), in approving the Approach to the Eleventh Plan, endorsed a target of nine per cent GDP growth for the country as a whole. This growth is to be achieved in an environment in which the economy is much more integrated into the global economy, an integration that has yielded many benefits but also poses many challenges. If this is achieved, it would mean that per capita GDP would grow at about 7.6 per cent per year to double in less than ten years. However the target is not just faster growth but also inclusive growth, that is, a growth process which yields broad-based benefits and ensures equality of opportunity for all.

Issues / Discussion Points
The critical questions are: Why are governments in developing and developed countries concerned about exclusion and discrimination? Why do they develop policies against such practices and for reservation and inclusion? Is inclusion only an issue of equity or does it also involve economic costs to the society? Are the costs it imposes on the society more social and political than economic? What, if any, is the relationship between growth and inclusion? These and certain more issues are posed below for all thinking minds to apply their brains for turning the issues into viable policy options:

(1) Are there reliable or efficient mechanisms for reviewing, reporting and correcting distortions, or monitoring the implementation of the reservation policy? Are the disadvantaged really aware of these rights? If not why? If they are aware, are they aware that education is a precondition to avail of the reservation benefits? If they are aware, what prevents them from using the education ladder? Why are they waiting to move, in the words of Huxley, “from the gutter to the university”?

(2) If there are economic and social disabilities which prevent them from getting educated, how best can the officials and/or the politicians be sensitized on the need for reaching out and investing in these excluded groups and sensitize the excluded ones on the need for educating the rising generation, among other things, to remain “socially fit” in the fast evolving competitive domestic and global market.

(3) As the official machinery is unwieldy, dealing with a much more unwieldy population, official work on a particular issue often turns out to be a case of one hand not knowing what the other hand does. To avoid this, it is necessary to have proper issue-based integration or at least coordination of departments.

(4) Often, other social groups have resented reservation for the backwards. The state needs to create social awareness among all the concerned groups – officials, backwards and the rest of society about the need and justification for such reservation. This cannot be done by merely quoting the constitutional provisions as each such agitation pushes us back from the path of faster inclusive growth. The more important issue for this purpose is to drive home the main features of secular, democratic governance, India’s constitutional commitment to such governance, and to the eradication of social inequalities, the need for building up democracy through democratization of individual, promotion of inclusive social ethos and practices, and expanding the civil and secular space in society.

(5) Whether the state is generating adequate employment every year to meet the requirements of the reservation policy? If the numbers are reduced to percentages and the quotas are filled only when vacancies arise and the backwards have to remain unemployed or wait for the state’s mercy till doomsday that can neither ensure inclusion nor faster growth.

(6) A realistic approach in the era of the paradox of ‘golden handshakes’ and VRS on one side and globalization on the other would be to invest more, and also act more effectively on the education of the backwards and equip them for employment in the highly competitive labour market, so that their dependence on state employment becomes much less.

(7) Although preferential treatment has kept the beneficiary groups and their problems visible to the educated public, it has not stimulated widespread concern to provide for their inclusion, apart from what is mandated by government policy. This lack of concern is manifest in the record of private sector employment-as it was in public undertakings employment before the introduction of reservations.

(8) While the affirmative action policy in many of the countries all over the world was, to begin with, used for both private and public sector, why did the India state never think of bringing the private sector under the purview of a reservation policy – even though it was the fact of discrimination in the private domain that led us to accept the reservation policy for the public sector?

(9) The denial of cultural capital and the lack of access to education inhibit in many ways one’s ability to deal with knowledge and leverage it. And this cultural capital takes much longer to build up than convergence in income levels. Therefore, is it really fair to think of a poor SC, ST, or an OBC and a poor Brahmin/ upper caste as being similarly situated, just as a middle class SC, ST or many middle class OBCs and middle and upper middle class Brahmin inhabit different worlds?

(10) Although caste is an important factor of exclusion at work in Indian society, other factors such as gender, economic conditions, geographical disparities and kind of schooling received cannot be altogether ignored. For example, a child studying in a village or municipal school does not enjoy the same status in society as another who has studied in an elite public school, caste notwithstanding. Some academics have argued that a better system of Affirmative Action and inclusion would be one which seeks to address all the factors of exclusion at work in society which restrict a person’s competitive abilities.

(11) Reservation decision must be taken based on objective basis, Emphasis should be given to proper primary (and secondary) education so that groups under-represented in higher education institutes and workplaces become natural competitors, the number of seats should be increased in the prestigious higher education institutes (such as IITs).

(12) Should government announce long term plan to phase out reservations? It is suggested that using IT, the government must gather latest data on caste wise population, their educational attainment, occupational achievements, wealth etc. and present this information to the nation for a well-informed and well debated policy decision.

Conclusion And Suggestions
In a nutshell, the Indian Constitution is a social document and the reservation policy has been conceived as a key to social reconciliation and power sharing. Keeping this in view, the nation is to be governed with absolute commitment, positive thinking, judicious planning, optimum effort, harmonizing initiatives and relentless determination, or to sum it up, a perfectly proactive and sensitized inclusive governance, to lead the nation to an era of development where the ideal of development would not need a contradistinctive term as inclusive growth, but growth itself would come to mean a natural, homogeneous and integral inclusive growth. There is a crucial need for the sensitization of every citizen of the country towards his or her individual role in creating, developing and maintaining the inclusive and sustainable development. This would include propagation of the express need of the nation and responsibility of all to preserve national resources and assets natural, physical as well as human. Mass awareness drives, creating in all a sense of responsibility and ethics towards the participation of all in the development of the nation, need to be constantly reinforced.

The policy of reservation in its myriad forms and manifestations, with all other enabling and empowering constitutional provisions, implemented and monitored honestly, can be an effective strategy to ensure faster inclusive growth.

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




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