Reservation in India

Form of affirmative action

Reservation is a system of affirmative action in India created during the British rule. It provides historically disadvantaged groups representation in education, employment, government schemes, scholarships and politics. Based on provisions in the Indian Constitution, it allows the Union Government and the States and Territories of India to set reserved quotas or seats, at particular percentage in Education Admissions, Employments, Political Bodies, Promotions, etc., for "socially and educationally backward citizens."

Quota systems favouring certain castes and other communities existed before independence in several areas of British India. Demands for various forms of positive discrimination had been made, for example, in 1882 and 1891. Chatrapati Shahu, the Maharaja of the princely state of Kolhapur, introduced reservation in favor of non Brahmin and backward classes, much of which came into effect in 1902. He provided free education to everyone and opened several hostels to make it easier for them to receive it. He also tried to ensure that people thus educated were suitably employed, and he appealed both for a class free India and the abolition of untouchability. His 1902 measures created 50 percent reservation for backward communities. In 1918, at the behest of several non Brahmin organizations criticizing Brahmin domination of administration, the Mysore Raja Nalvadi Krishnaraja Wadiyar created a committee to implement reservations for non Brahmins in government jobs and education over the opposition of his Diwan M. Viswesvaraya, who resigned in protest. On 16 September 1921, the first Justice Party government passed the first Communal Government Order (G. O. # 613), thereby becoming the first elected body in the Indian legislative history to legislate reservations, which have since become standard across the country. The Imperial parliament at Westminster introduced elements of reservation in the Government of India Act of 1909 and there were many other measures put in place prior to independence.

After the independence of India in 1947 there were some major initiatives in favor of the Scheduled Castes and Scheduled Tribes (SCs and STs) and after the 1980s in favour of OBCs (Other Backward Castes) and in 2019 for poor in the general category. The country's affirmative action program was launched in 1950 and is the oldest such programme in the world. A common form of caste discrimination in India was the practice of untouchability. SCs were the primary targets of the practice, which was outlawed by the new Constitution of India. In 1954, the Ministry of Education suggested that 20 percent of places should be reserved for the SCs and STs in educational institutions with a provision to relax minimum qualifying marks for admission by 5 percent wherever required. In 1982, it was specified that 15 percent and 7.5 percent of vacancies in public sector and government aided educational institutes should be reserved for the SC and ST candidates, respectively. A significant change began in 1979 when the Mandal Commission or the Socially and Educationally Backward Classes (SEBC) Commission was established to assess the situation of the socially and educationally backward classes. The commission did not have exact population figures for the OBCs and so used data from the 1931 census, thus estimating the group's population at 52 per cent. In 1980, the commission's report recommended that a reserved quota for OBCs of 27 per cent should apply in respect of services and public sector bodies operated by the Union Government. It called for a similar change to admissions to institutes of higher education, except where states already had more generous requirements. In 2019 the government announces the 10% reservation in educational institutions and government jobs for economically weaker section of the general category. The Constitution of India states in article 15(4): "Nothing in [article 15] or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially, and educationally backward classes of citizens of or for the Scheduled Castes and the Scheduled Tribes." Article 46 of the Constitution states that "The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation." The Supreme Court of India ruled in 1992 that reservations could not exceed 50 percent, anything above which it judged would violate equal access as guaranteed by the Constitution. It thus put a cap on reservations. and held that the 50% cap on quota is not inviolable and affirmative action on economic basis may go a long way in eradicating caste based reservation. This constitutional amendment pushed the total reservation to 59.50% in central institutions.

Government and public sector will hire job seekers based on reservation percentage from two different categories 1: reservation category (SC, ST, OBC, EWC and other minorities) 2: Open category (General, SC, ST, OBC, EWC and other minorities). While hiring, major priority is given to reservation category including 33% reservation for Women, priority in hiring is given by Other Minorities women, ST women, SC women, ST Men, SC Men, OBC women, OBC Men, EWS Women, EWS Men and then after Open category Will be considered. Government and public sector hiring based on Merit in open category and one more anomaly here i. e., Priority in hiring will be given by: Other Minorities women, ST women, SC women, ST Men, SC Men, OBC women, OBC Men, EWC Women, EWC Men and then General if they are equally eligibility (for example having same marks or Rank). The landmark initiative of Special Recruitment for Scheduled Caste and Scheduled Tribe in Government jobs was started in Kerala in 1972 by Vella Eacharan. The 1993 Supreme Court ruling in the Indra Sawhney & Others v. Union of India case said that reservations in job promotions are "unconstitutional" or not in accordance with the political constitution but allowed its continuation for five years. In 1995, the 77th amendment to the Constitution was made to amend Article 16 before the five year period expired to continue with reservations for SC/STs in promotions. It was further modified through the 85th amendment to give the benefit of consequential seniority to SC/ST candidates promoted by reservation. The 81st amendment was made to the Constitution to permit the government to treat the backlog of reserved vacancies as a separate and distinct group, to which the ceiling of 50 per cent did not apply. The 82nd amendment inserted a provision in Article 335 to enable states to give concessions to SC/ST candidates in promotion. The validity of all the above four amendments was challenged in the Supreme Court through various petitions clubbed together in M. Nagaraj & Others Vs. Union of India & Others, mainly on the ground that these altered the Basic Structure of the Constitution. In 2006, the Supreme Court upheld the amendments but stipulated that the concerned state will have to show, in each case, the existence of "compelling reasons" which include "backwardness", "inadequacy of representation" and overall "administrative efficiency before making provisions for reservation. The court further held that these provisions are merely enabling provisions. If a state government wishes to make provisions for reservation to SC/STs in the promotion, the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class. In 2007, the Government of Uttar Pradesh introduced reservation in job promotions. However, citing the Supreme Court decision, the policy was ruled to be unconstitutional by the Allahabad High Court in 2011. The decision was challenged in the Supreme Court, which upheld it in 2012 by rejecting the government's argument because it failed to furnish sufficient valid data to justify the move to promote employees on a caste basis.

Universities allot seats based on reservation percentage from two different categories are 1: reservation category (SC, ST, OBC, EWC and other minorities) 2:Open category (General, SC, ST, OBC, EWS and other minorities). In allotment, Major priority given to reservation category including 33% reservation for Women, priority in allotting is given by Other Minorities women, ST women, SC women, ST Men, SC Men, OBC women, OBC Men, EWC Women, EWC Men and then after Open category Will be considered. Government Universities will allot based on priority by: Other Minorities women, ST women, SC women, ST Men, SC Men, OBC women, OBC Men, EWC Women, EWC Men & then General and reservation percentage under consideration for entrance exams fees, for cut off marks, for allotment of seats and also applicable to other government schemes. In India student aids are available for—SCs, STs, BCs, OBCs, women, Muslims, and other minorities. Only about 0.7% of student aids in India is based on merit.

Constitution of India debars reservation based on religion in India. The Tamil Nadu government has allotted 3.5% of seats each to Muslims and Christians, thereby altering the OBC reservation to 23% from 30% (since it excludes persons belonging to Other Backward Castes who are either Muslims or Christians). The Government of Andhra Pradesh introduced a law enabling 4 percent reservations for Muslims in 2004. This law was upheld by the Supreme Court in an interim order in 2010 but it constituted a Constitution bench to look further into the issue. The referral was to examine the constitutional validity of quotas based on religion. Kerala Public Service Commission has a quota of 12% for Muslims. Religious minority (Muslim or Christian) educational institutes also have 50% reservation for Muslim or Christian religions. The Central government has listed a number of Muslim communities as backward Muslims, making them eligible for reservation.

The Union Government on 22 December 2011 announced the establishment of a sub quota of 4.5% for religious minorities within the existing 27% reservation for Other Backward Classes. The reasoning given was that Muslim communities that have been granted OBC status are unable to compete with Hindu OBC communities. It was alleged that the decision was announced as the Election Commission announced Assembly elections in five states on 24 December 2011. The government would not have been able to announce this due to the model code of conduct. On 12 January 2012, the Election Commission stayed implementation of this decision for violation of the model code of conduct. Later, Justice Sachar, head of the Sachar Committee that was commissioned to prepare a report on the latest social, economic and educational condition of the Muslim community of India, criticised the government decision, saying "Such promises will not help the backward section of minorities. It is like befooling them. These people are making tall claims just to win elections". He suggested that instead of promising to give reservations, the government should focus on basic issues of improving administration and governance. On 28 May 2012, the Andhra Pradesh High Court quashed the sub quota. The court said that the sub quota has been carved out only on religious lines and not on any other intelligible basis. The court criticized the decision: "In fact, we must express our anguish at the rather casual manner in which the entire issue has been taken up by the central government. ".

Mandal commission protests of 1990 were against reservation in government jobs based on caste in India.

The 2006 Indian anti reservation protests were a series of protests that took place in India in 2006 in opposition to the decision of the Union Government of India, led by the Indian National Congress headed multiparty coalition United Progressive Alliance, to implement reservations for the Other Backward Classes (OBCs) in central and private institutes of higher education. This move led to massive protests, particularly from students and doctors belonging to the forward castes, who claimed that the government's proposal was discriminatory, discarded meritocracy and was driven by vote bank politics.

In 2008 and 2010, the Gujjar community in Rajasthan demanded reclassification from OBC to ST (Scheduled Tribes) for increased reservation benefits. They began violently protesting on the streets of Rajasthan and blocked several rail lines. Police firing on Gujjars began a tit for tat cycle of violence between Police and Gujjars. The violence ended with 37 people dead. Their move was opposed by the Meenas, the main ST community in Rajasthan. In 2019, the agitation restarted as Gujjars demanded 5% reservation, and began blocking trains to this effect. Jats have been demanding OBC status since the 1990s. In 2016, they began an agitation to get this status. To this effect they began protesting by blockading roads and lines, but later the protests turned violent. Riots spread to Delhi and western Uttar Pradesh, and even Rajasthan. The epicentre of the violence was in Rothak, and almost ₹34000 crores ($4.8 billion) worth of property was damaged and 30 were killed. Bowing to the pressure, the Haryana government created a special category for Jats and other upper castes called BC, and appointed 10% reservation, but the measure was blocked in court. Beginning in 2015, the Patidar community (better known as Patel) began agitating for OBC status in Gujarat. This movement consisted of massive demonstrations across the state, led by Hardik Patel. Later many of these protests turned violent, resulting in curfews across the state and crores worth of damage. Talks with the government broke down, and the violence restarted. After the Jat agitation began in 2016, the Patidars flared up again and led a march through Gujarat, but protests in several cities turned violent and the Rapid Action Force was sent in. In 2019, the Telugu Desam Party which had just been made opposition, tabled a bill to have a 5% sub quota for Garps out of EWS reservation. Marathas, the dominant caste of Maharashtra, have been agitating for OBC status since the 1990s. In 2016, after the rape and murder of a 15 year old Maratha girl in Kopardi, the Maratha community organized massive protests throughout Maharashtra. Their demands included death for the accused as well as reservations for the Maratha community which makes up 16% of the state's population. Some road blocks turned violent in 2017 and 2018, but overall the protests were peaceful. Their demand was met when the Maharashtra government instituted a special SEBC (Socially and Educationally Backward Classes) category for them with 16% reservation.

The Union Government tabled the Constitution (One Hundred And Twenty Fourth Amendment) Bill, 2019 which provided 10% additional quota for the economically weaker sections amongst the erstwhile unreserved category students. The definition of 'economically weaker sections' will be defined by the State from time to time. The constitutional amendment has laid down that they will be restricted to people with household income less than 8 Lakh per annum and those who own agricultural land below five acres. Business Today has commented that these criteria cover almost 100 percent of the population. Several petitions have been filed before the Supreme Court of India challenging the legality of this amendment.

The term creamy layer was first coined in 1974 in the State of Kerala vs N. M. Thomas case when Justice VR Krishna Iyer said that the "benefits of the reservation shall be snatched away by the top creamy layer of the backward class, thus leaving the weakest among the weak and leaving the fortunate layers to consume the whole of the cake". The 1992 Indra Sawhney & Others v. Union of India judgement laid down the limits of the state's powers: it upheld the ceiling of 50.21 percent quotas, emphasised the concept of "social backwardness", and prescribed 11 indicators to ascertain backwardness. The judgement also established the concept of qualitative exclusion, such as "creamy layer". The creamy layer applies only to OBCs. The creamy layer criteria were introduced at Rs 1 lakh in 1993 and revised to Rs 2.5 lakh in 2004, ₹4.5 lakh in 2008 and ₹6 lakh in 2013, but now the ceiling has been raised to ₹8 lakh (in September 2017). In October 2015, the National Commission for Backward Classes (NCBC) proposed that a person belonging to OBC with an annual family income of up to ₹15 lakh should be considered as minimum ceiling for OBC. The NCBC also recommended sub division of OBCs into "backward", "more backward" and "extremely backward" groups and to divide the 27 per cent quota amongst them in proportion to their population, to ensure that stronger OBCs do not corner the quota benefits.