MOCKERY OF RESERVATION POLICY June 29, 2014 at 10:22pm There are only two classes of people in world viz. (1) developed or forward class people, and (2) under-developed/developing or backward class people. This classification has its relationship with 3 basic powers of world which are required for making human life advanced and dignified. These 3 basic powers are (1) knowledge power based on education and intellectual capacity, (2) economic power based on ownership and possession of natural resources, and (3) political power based on military strength. The human development is complete by having all these 3 powers together. But the Nature’s design is such that every human being remains incomplete throughout life in one way or other by individual weakness in gaining of all these 3 powers together in equal proportion. The co-dependence for co-survival is the basic design of Nature. When the humans fail to understand the natural principle of co-dependence, the co-dependence gets converted into competition with all debates for regulation of intra-human competition for acquisition and enjoyment of aforesaid 3 powers. The reservation policy is one of such debates in the matter of regulating intra-human competition. The forward class people are the people who have acquired by concentration in and monopoly over all the aforesaid 3 powers within said class thereby making the backward class people struggle hard for acquisition and enjoyment of said 3 powers in competition with forward class people. This competition becomes hard because of established position of forward class people. The State therefore intervenes to provide certain concessions to backward class people thereby relaxing such hard competition for such people to some extent. This concession can be in the nature of subsidy and/or reservation. Since the major population of advanced countries is in advanced and established position, such countries do not need any such special concession or reservation policy. However, the problem of scheduled castes and scheduled tribes in India and the problem of blacks (Negroes) in U.S.A. are more or less similar only with a difference that India’s caste problem is the oldest problem in history of human civilization. In Indian context, the problem of human backwardness had also the color of caste system wherein socially upper caste people lived with ego of belonging to upper caste and treated lower caste people below human dignity. This mythological superiority complex of upper caste people created special form of social backwardness within Indian population in addition to other forms of backwardness such as educational backwardness, economic backwardness and political backwardness. The architects of Indian Constitution with Dr. B. R. Ambedkar as Chairman of Constitution drafting committee therefore felt it necessary to provide for reservation to backward class people for making them strong to face competition from forward class people. The existence of caste system compelled architects of Indian Constitution to create special categories of backward classes within general backward class for providing special concession /reservation to such backward class people. The Articles 15(4) and 16(4) read with Articles 46, 340, 341 and 342 of Indian Constitution therefore have created 4 sub-categories of backwardness for such reservation viz. (1) socially backward class, (2) educationally backward class, (3) scheduled castes, and (4) scheduled tribes. The Indian Constitution surprisingly does not make any such special provision for (1) economically backward class and (2) politically backward class. The Article 46 of Indian Constitution speaks about promotion of educational and economic interests of scheduled castes, scheduled tribes and other weaker sections of people. But it must be clearly understood that said Article 46 does not create any economically backward class for reservation purpose. The Hon’ble Supreme Court of India by its judgment and order has declared that any such special concession/reservation to aforesaid 4 sub-categories of backward class cannot exceed 50 per cent. However, the Government of Maharashtra by its order dated 7th December, 1994 created new sub-category of backward class called “special backward class” and made 2 per cent additional reservation for said new backward class thereby exceeding 50 per cent limit of Hon’ble Supreme Court to 52 per cent. Now, the Government of Maharashtra by its recent decision dated 25th June, 2014 has provided for additional 16 per cent reservation to backward people of Maratha upper caste and 5 per cent reservation to backward people of Muslim religion. The aforesaid 3 sub-categories of backward people viz. (1) special backward class, (2) backwards from upper Maratha caste, and (3) backwards from Muslim religion created by Government of Maharashtra have to fall within aforesaid 4 main sub-categories of backward class viz. (1) socially backward class, (2) educationally backward class, (3) scheduled castes, and (4) scheduled tribes created by Indian Constitution. The another point is that the Government of Maharashtra by aforesaid 3 additional reservations of 2 per cent to special backward class, 16 per cent to backwards from upper Maratha caste and 5 per cent to backwards from Muslim religion has exceeded 50 per cent reservation limit of Hon’ble Supreme Court to 73 per cent i.e. 50+23=73 per cent. The Articles 15(4) and 16(4) read with Articles 46, 340, 341 and 342 of Indian Constitution provide an exception to the general rule that there cannot be discrimination between Indian citizens on the grounds of religion, caste etc. It means that the discrimination is permitted on said grounds of religion, caste etc. if people belonging to certain religion, caste etc. are found by State to be backward. This argument goes in favor of Government of Maharashtra if it has found that certain people even within upper Maratha caste and within Muslim religion are backward. The Maratha caste is definitely an upper caste from social backwardness point of view, otherwise it would have been included in the list of scheduled caste at the beginning only. But the caste system is so complexly developed in India that some sections of people even within upper Maratha caste such as Kunbi are socially backward. The State Backward Commission constituted by State government holds constitutional power of declaring any section of people belonging to any caste or religion as socially backward for reservation purpose if it finds by survey that such section is socially backward in true sense of law. It is debatable whether Narain Rane Commission which recommended reservation for backwards within upper Maratha class and backwards within Muslim religion is constitutionally recognized State Backward Commission. The Hon’ble Supreme Court of India by its 9 member Bench headed by Chief Justice M. N. Venkatachallah delivered a landmark judgment on 16th November, 1992, popularly known as Mandal Commission judgment, which is very much detailed and explanatory judgment on reservation policy. It is this landmark judgment which has put a ceiling limit/cap of 50 per cent on reservation. Please refer to the citation in case viz. Indira Sawhney versus Union of India, AIR 1993 SC 477. However, later on the Hon’ble Supreme Court of India by its 3 member Bench headed by Chief Justice S. H. Kapadia delivered a judgment on 13th July, 2010 permitting Tamil Nadu government to provide 69 per cent reservation to OBC’s and ST’s in government jobs and educational institutions thereby exceeding 50 per cent cap on reservation, subject to certain conditions. Again later on, the Hon’ble Supreme Court of India by its 3 member Bench delivered a judgment on 8th October, 2013 clarifying that 50 per cent ceiling/cap put by Hon’ble Supreme Court in Indira Sawhney/Mandal Commission case is not applicable to disabled persons since the point for consideration in Mandal Commission case was that of vertical reservation for SC, ST & OBC, while reservation in favor of persons with disabilities is horizontal reservation. This is how the Indian politicians have made the highest Judiciary of India to break its head on reservation policy. In this context, it should be noted that if Government of Maharashtra by its recent decision recognizes 73 per cent population of State of Maharashtra as backward population, it is not a good sign of State progress. If 73 per cent population belongs to backward class, it means that only 27 per cent population belongs to forward class. The more and more backward class people only means increased competition within backward class people as against generally understood competition between backward class people and forward class people. Secondly, there cannot be any reservation without merit. It should always be merit-cum-reservation competition criterion for backward class people, if only merit is competition criterion for forward class people. Have our Indian politicians truly understood the basic of reservation policy and true intention of architects of Indian Constitution introducing such policy in Constitution? Is it not a mockery of reservation policy by Indian politicians to serve their vested political interests? –Adv.B.S.More P.S. It is learned from media that Mr. Ketan Tirodkar, a public interest litigation activist has filed a writ petition in the Hon’ble High Court of Bombay challenging the recent decision of Government of Maharashtra creating additional reservation as aforesaid. Let us see the outcome.
Posted on: Sun, 29 Jun 2014 18:57:12 +0000
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