Is reservation a fundamental right or is it acting as subtle as a sledgehammer in destroying the concept of justice?

The outcaste is a by-product of the caste system. There will be outcastes as long as there are castes. Nothing can emancipate the outcaste except the destruction of the caste system.

B. R. Ambedkar

Introduction

India is abode to many communities, which has brought forth challenges for it of which, caste discrimination is the major one. India has always thrived to achieve Justice for its people. Even the preamble to the Constitution suggests that there should be “Justice, social, economic and political”. Thus, to achieve that, the Constitution provides for specific mandates for the protection of the depressed and backward classes, thereby giving space to affirmative action policies, for instance, provided for in Article 330, 332, 15, 16, and 46 of the Constitution of India. In essence, the strategies adopted in the form of affirmative-actions to ‘pull-up’ the backward classes have acted as subtle as a sledgehammer in destroying the concept of Justice by just focusing on the ‘Caste-factor’.

Recently, Mukesh Kumar and Anr. v. the State of Uttarakhand and Ors.[1] a judgment by the Supreme Court created a fuss and uproar among people for merely reiterating the position of law[2], i.e., stating that the right to reservation is not the fundamental right.  The reaction of the people to the judgment validates that the strategy adopted for the annihilation of caste has become a tool for separatism.

Rawls theory of justice and Substantive equality

Rawls theory of justice can be understood by breaking it into two principles. The first principle talks about formal equality wherein everyone is on the same pedestal and, the second principle enumerates substantive/ proportionality equality, i.e., giving privileges based on socio-economic conditions” [3]. India is inclined towards substantive equality and, thus, provided for affirmative action policies for backward classes.

The principle of equality is a crucial element of democracy and fundamental rights. Thus, it is the basic structure of the Constitution.[4] Therefore, its facets i.e. formal and substantive equality can also fall under the umbrella of the basic structure. The notion of equality or fundamental right to equality is given under Article 14 of the Constitution and Article 15 and 16 furthers the same.

As the readers of the blog will be aware, that Article 15 (4) and Article 16 (4) are no longer exceptions to the Articles.[5] Thus, these provisions are merely an empathetic way in which equality of opportunity can be carried.[6] Therefore, with the passage of time and the string of cases, Caste has become the sole and dominant factor for determining backwardness[7] , and factors like poverty/economic factors have taken a backseat for determining substantive equality in India. The author will like to highlight an illustration by Bernard Williams here –

“Suppose that in a certain society great prestige is attached to membership of a warrior class. This class has in the past been recruited from certain wealthy families only; but egalitarian reformers achieve a change in the rules, by which warriors are recruited from all sections of the society, on the result of a suitable competition. The reformers protest that equality of opportunity has not really been achieved; the wealthy reply that in fact it has, and that the poor now have the opportunity of becoming warriors.”[8]

This illustration is basically the premise of the people speaking in favour of reservation. Their contention is that because of historical discrimination and to ‘pull-up’ depressed classes reservation is necessary. Thus, these affirmative action policies are to reduce the concept of ‘purity’ and ‘impurity’ prevalent since ages and not to promote separatism. But unfortunately, affirmative action has strengthened caste consciousness among the citizens.

The author would like to highlight some examples wherein concept historical subjugation is no longer the issue, for instance in Punjab.[9] Further, if we look at Maratha reservation and Hardik Patel case which highlights that –

One reason the Patels want to be OBCs, believes social scientist Achyut Yagnik, is to get their children into medical and engineering colleges or institutions[10]

The government and people have started seeing reservation as a solution to their problems instead of support for advancement. We are familiar with agitations for the demand of reservation but not for the demand for better and more inclusive education in schools.

Economic conditions and inclusion of poor irrespective of their caste

The debate is taking a shift from the concept of the “purity or impurity” to“vote banks” and “politics”.  It is unjust to give the support of reservation only on the basis of caste and tribe. It is argued by pro-reservation scholars that reservation is given to remove social inequality, and hence, poverty can’t be the sole criterion.

Even if we assume that social equality is the only purpose of reservation, it is still, hard to understand why economically weaker people from these castes don’t deserve reservation first. A poor SC/ST student is equally good and even better representative of his community than a rich SC/ST student. For example, in CLAT entrance students with weak linguistic skills face difficulty in CLAT. Thus, NLUs are dominated by CBSE/ICSE students. So, in such an exam, we may reserve seat or give certain other advantage to state board students.

Now, the author would like to give an example to support that caste cannot be considered as the only factor for achieving substantive equality. When we include caste as the only factor, we exclude a huge number of populations residing in rural areas or of LGBTQ etc. who may be equally disadvantaged. let us take into consideration eight people of which six of them belong to general category, and two of them belong to the depressed class, now there are only four apples for them, out of which two are given to the  depressed class, and the remaining six have to share the two apples. Thus, this will instill feelings of rage and anger among the six because what the eight could have shared is now being unevenly divided. Further, the six will feel that the two people of the depressed classes are unjustly benefitted and therefore, they will not involve them/ or consider them as part of their group.  And, from the six people, one or two might be in dire need of the apple and they may die if they don’t get it. Now, try to understand this example in the light of reservation in education and government jobs and promotions.

Therefore, it can be deduced from the above discussion that considering caste will not suffice in achieving the goal of achieving substantive equality.

In M.R. Balaji v. State of Mysore, it was observed that –

“…the remedies suggested by the Commission were worse than the evil it was out to combat. According to the Chairman, if we eschew the principle of caste, it would be possible to help the extremely poor and deserving from, all communities.”[11]

Conclusion

Further, even though Constitution provides for the protection of backward classes, but the same also provides for ensuring “justice” for all as “We, the people” is not devoid of the SEBCs, and, SEBCs does not comprise only of people from the lower caste. Even, Article 46 of the Constitution uses the words “in particular” before SCs and STs which does not mean protecting the interest of SCs and STs only, further words used in Article 15 are “special provision” which can also include other modes except reservation like scholarship assistance or health facilities etc. Thus, economic factor and practices like inter-caste marriages or inter-dining are to be considered to achieve the substantive equality in reality, further, a duty is also upon the educated upper caste to take responsibility for annihilation of caste from society.

[1] Civil Appeal No. 1226 of 2020 [Arising out of S.L.P. (Civil) No. 23701 of 2019].

[2] Ajit Singh v. State of Punjab (1996) 2 SCC 715.

[3] John W. Chapman, Rawl’s Theory of Justice  (1975) 69 (2) The American Political Science Review < https://www.jstor.org/stable/1959089?seq=1#metadata_info_tab_contents> accessed on 5th April, 2020.

[4] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.

[5] N.M. Thomas v. State of Kerala 1976 SCR (1) 906.

[6] Ibid.

[7]See M.R. Balaji v. State of Mysore 1963 Supp 1 SCR 439; N.M. Thomas v. State of Kerala 1976 SCR (1) 906; Indira Sawhney v. Union of India AIR 1993 SC 477.

[8] Bernard Williams, Problems of the Self (Cambridge University Press 1976) 241.

[9] Surinder S Jodhka, Caste and Untouchability in Rural Punjab (2002) 37 (19) EPW 1813.

[10] Shikha Trivedy, The Real story of what Hardik Patel, 21 wants and why, NDTV (India, 24th August, 2015) < https://www.ndtv.com/india-news/the-real-story-of-what-hardik-patel-21-wants-and-why-1210424> accessed on 5th April, 2020.

[11] M.R. Balaji v. State of Mysore 1963 Supp 1 SCR 439.


ABOUT THE AUTHOR

Diksha Dubey

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Diksha Dubey is a fourth-year law student from Maharashtra National Law University, Nagpur. She has a keen interest in International Law and Criminal Law. She also likes to read a lot and is working as an editor for National Law University, Nagpur student law journal.

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