By Ummar Jamal
While one can’t be against the concept of ‘reservation’ per se, for it is mandated by constitution in its part 3rd, but the manner in which it is being now implemented raises questions about their effectiveness and impact.
Reservation was envisioned by our constitutional framers to rectify past and historical injustices against backward classes in India and not to uproot the meritocracy. When a community is given reservation well beyond the backwardness and disadvantages, the idea of reservation dies.
The recent decision to increase the Scheduled Tribe (ST) quota by 10% and the Other Backward Classes (OBC) quota by 4% in Jammu and Kashmir, enhancing the total reservation to 70%, is one such example. This move, announced on 16th March, comes amidst the inclusion of four new tribes into the Scheduled Tribes category. While purported to be for inclusivity and emancipation of the four tribes, the decision raises critical concerns.
The proposed 10% reservation for Paharis and other three tribes is utterly disproportionate, both in terms of their backwardness as well as their demography. Without clear evidence of widespread disadvantage and systemic discrimination faced by the Pahari community and the other three tribes, the rationale behind the 10% reservation remains questionable.
The new reservation rules added 15 new castes in the already long list of OBC castes and they were increased to a 4 percent quota and here we see 10% reservation for merely four tribes. Why this preferential treatment to these four tribes? The justification for a 10% reservation raises legitimate concerns about the criteria used for determining reservation quotas.
The decision overlooks the principle of proportionality and balance in the new reservation policy. The allocation of 70% reservation in Jammu and Kashmir, where the open merit population constitutes approximately 69% population, raises questions of arbitrariness and violates the right to equality under Article 14 of the Constitution. The people in power must also consider the rights and opportunities of the general population.
The reservation scenario in Jammu and Kashmir prior to the recent decision was tenable, with various quotas allocated for different categories, including SCs, STs, OBCs, residents along the Line of Actual Control/International Border, Residents of Backward Areas (RBA), Economically Weaker Sections (EWSs), Ex-servicemen, and Persons with Disabilities (PWD). Despite the existing reservations totaling 56%, the decision of 16th march to further increase the 10 percent quota for Paharis and other three tribes breaches the 50% cap set by the Supreme Court.
Many argue that the EWS category is not included when counting the 50% cap but we need to understand, whether 10 percent of EWS are counted or not, it does reserve 10 person seats for those who are economically weak. So there comes no question of arguing the quota for open merit is 40 percent and not 30 percent. And let’s be mindful, be it horizontal reservation or vertical reservation, all it does is it reduces the quota for open merit candidates.
As the percentage of reservations increases, the available opportunities for individuals outside reserved categories diminishes. In a scenario where 70% of positions are reserved, the remaining 30% quota for the open merit population cannot be sufficient to accommodate their aspirations and talents. Where will the 70% of the population go? Aren’t they entitled to get jobs and admissions?
Dr Ambedkar, the founding father of the Constitution, emphasized the need for reservations to be limited to a minority of seats, ensuring a balance between affirmative action and meritocracy. On November 30, 1948 had a note of caution for future governments — large-scale reservation quotas could destroy the rule of equality of opportunity. He advocated that reservation quotas be consistent with Article 10 (now Article 14) of the Constitution and must be confined to a minority of seats.
The concept of affirmative action through reservations finds its roots in the Indian Constitution, with provisions enshrined under Articles 15(4), 15(5), and 16(4) aimed at uplifting marginalized communities, including Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). However, these provisions are subject to a judicially-mandated ceiling of 50%, established by the landmark Indra Sawhney v Union of India case in 1992.
The judiciary has consistently emphasized the need for reservations to be confined within the 50% limit, barring exceptional circumstances. The Indra Sawhney judgment acknowledges the possibility of breaching this ceiling only in extraordinary situations, such as for remote and marginalized communities. However, the recent decision fails to demonstrate the existence of such extraordinary circumstances, thereby raising concerns regarding its constitutional validity. The judiciary’s interpretation of the Indra Sawhney judgment emphasizes the need for prudence and caution when considering any breach of the 50% cap. The absence of compelling evidence justifying the expansion of quotas beyond this limit undermines the foundational principles of equality and fairness enshrined in the Constitution.
The judicial response to similar instances of exceeding the 50% reservation cap underscores the importance of upholding constitutional principles. In cases such as the Maratha reservation in Maharashtra and the reservation laws in Chhattisgarh, Orissa, and Rajasthan, the courts have consistently struck down attempts to surpass the prescribed limit.
I understand, reservations are essential for promoting inclusivity and addressing historical injustices but they must not come at the expense of merit-based selection processes. The Indra Sawhney judgment rightly emphasized the importance of striking this balance, ensuring that reservations do not undermine the principles of meritocracy and efficiency.
But unfortunately the evolution of reservation policies over time has deviated from the vision of our constitutional framers, who conceived reservations as a means to empower the marginalized and promote social justice. Instead, reservations have often been politicized and manipulated for narrow political gains, leading to distortions in their implementation and outcomes.
It is crucial to acknowledge that reservations, when implemented judiciously, can serve as a powerful tool for empowerment and inclusion. They provide opportunities to historically disadvantaged groups and address systemic inequalities that have perpetuated social and economic disparities. However, the effectiveness of reservation policies hinges on their ability to target and uplift the truly disadvantaged segments of society.
There is an urgent need to strike a balance between meritocracy and reservation, as articulated in the Indra Sawhney judgment, to ensure that reservations empower the disempowered rather than displace opportunities for the empowered.
Views expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer
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