Historical exclusion from services and social backwardness led to the introduction of reservations under our constitutional scheme.
Ahead of the 2019 general elections, the sudden decision of the union cabinet to amend the Constitution to provide 10 per cent reservation to individuals (other than Scheduled Castes, Scheduled Tribes and OBCs) in government services and in admission to higher educational institutions on the basis of economic status has initiated a new constitutional conundrum and debate. Irrespective of whether the central government is able to get the proposed amendment passed in Parliament, such a move, which intends to change the nature of the reservation system, is against the spirit and norms of the Constitution.
The Constitution enshrines the promises of the freedom movement, which included achievement of social emancipation and replacement of an unequal social order as foremost objectives. It has been a struggle to replace fundamental wrongs with fundamental rights. The incorporation of the principle of anti-discrimination into the Constitution was the result of social movements against upper caste hegemony, led by the likes of Jyotirao Phule and B.R. Ambedkar. The provisions related to reservation embody this spirit and reflect the following goal of the Constitution-makers: undoing historical injustices against the communities, which were excluded from the mainstream of society, by providing them representation in government services and educational institutions.
Article 16(4) allows the state to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state. Deliberating upon the significance and the necessity of using the word “backward” in Article 16(4), Ambedkar had categorically identified (30 November 1948) removal of social disparity in administration as the purpose behind providing reservation. He emphasised that “there shall be reservations in favour of certain communities which have not so far had a ‘proper look-in’ so to say into the administration”. K.M. Munshi stated that the word “backward” signifies “a class of people who are so backward that special protection is required (for them) in the services”. This makes it clear that historical exclusion from administrative services and social backwardness are the major reasons behind introduction of reservations under our constitutional scheme.
Reservation in India, therefore, is a reflection of the transformative ideal of the Constitution, which gives expression to the aspirations and dreams of socially disempowered communities. It must be seen as the recognition and endorsement of a hope for a better future for marginalised communities, who have had their destinies crushed by a feudal and caste-based social order. Social backwardness-based reservation, as an ingredient of social justice, forms an essential feature of the basic structure of the Constitution.
This basic feature of the Constitution was solidified and enhanced by the first constitutional amendment, which inserted clause (4) to Article 15, thereby allowing the state to make any special provision for the advancement of any “socially and educationally backward classes of citizens” or for the Scheduled Castes and the Scheduled Tribes.
In his classic book Working a Democratic Constitution: The Indian Experience, Granville Austin has further recounted that while the union cabinet was deliberating upon presenting the first constitution amendment bill, it had received a telegram from the chief minister of erstwhile Madras, P.S. Kumaraswamy Raja, saying that Article 15(4) should provide for “educational, economic, and social advancement of the backward classes”. The word “economic” was consciously dropped, and the remaining provision was forcefully supported by Nehru and Ambedkar in the Parliament. This makes it evident that Ambedkar and other members of the Constituent Assembly and later the first cabinet did not approve of economic status-based reservation.
In the Indra Sahwney judgment, a nine-judge bench of the Supreme Court had categorically held that “a backward class cannot be determined only and exclusively with reference to economic criterion” and thus invalidated the 10 per cent reservation of the posts in favour of “other economically backward sections of the people who are not covered by any of the existing schemes of the reservations”.
Even if an amendment is made to the Constitution with the effect of taking away the basis of the Indra Sahwney judgment, it is bound to fail the test of basic structure doctrine, which as discussed, does not consider reservation that is based solely on economic grounds.
Anurag Bhaskar is an LLM student at Harvard Law School. He tweets at @anuragbhaskar_
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