Reservation for Scheduled Castes in independent India.

Reservation for Scheduled Castes (SCs) in independent India is a crucial component of the country's  affirmative action plan, designed to uplift historically marginalized communities. The reservation system in the Indian Constitution,  aims to address the centuries old social, educational, and economic discrimination thrust upon the marginalized communities by Brahmins and other upper caste Hindus.  Article 15(4) and  Article 16(4) of the Constitution empowered the state to make special provisions for the advancement of  any socially and educationally backward classes of citizens, including SCs to promote their social, political and economic development.

The caste graded Hindu society in India, on becoming a democratic republic, her founding fathers  thought it essential to give equal opportunity to all citizens for social, economic and political development,  which was considered essential for survival of the new democracy. This they realized can be achieved  only by sharing the power, with equal opportunity in education, employment, legislation and  judiciary. This was the logic & rationale for the inclusion reservation in the  constitution of India. The relevant articles 341 (former 300 A) and 342 (former 300B), have been  placed in the Constitution, intact,  with the power of declaring Scheduled Castes and Scheduled Tribes  in respect of any State,  to the President of India.  As such Article 341 (2) and Article 342(2), only the Parliament alone can make addition or deletion in  the lists. According to the founding fathers of the Constitution, this condition is essential to restrict tinkering with the provisions of Presidential list of SC/ST by any agency other than the Parliament of India. Based on these constitutional provisions, reservation was implemented only in a limited way in certain areas as seen in the following paragraphs.

1.  Education.

Reservation for SCs is implemented in educational institutions, including schools, colleges, and  universities. On an average 15% percentage of seats are reserved for SC students and 10% for  Scheduled Tribes (STs) in public and government-aided institutions. This policy aims to ensure access  to quality education and promote higher enrolment and retention rates among SC & ST students.  Scholarships, fee waivers, and other financial incentives are also provided to support their education. Whatever be the rule position statistics say that in rural India around 3 crores of children below 7 years  have not seen a school and 99% of these children are from SC, ST & OBC communities. As years moved  the facilities of education moved from the government sector and aided sector to the purely private sector. Government investment in this sector is either static or decreasing. The quality of education in government institutions is also nose diving, which further boosts private education. The net result is even  though reservation is provided in government institutions vast numbers of the SC/ ST children are deprived  of education. Our judiciary as well as governments are unaware of the poor infrastructure for school  education in rural India. It is in this background the SCI is raising the issue of excluding creamy layer  among SCs! A new strategy to deny even education to a section of Scheduled castes in the name of  creamy layer.

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2.  Employment.

In government jobs, reservation to the SCs, STs and OBCs in case of direct recruitment on all India basis by open competition is given at the rate of 15%, 7.5% and 27% respectively.

22.5% of vacancies are reserved for SCs and STs across all levels of employment, from Group D to Group A, and higher administrative posts. However in organized civil services, reservation is  restricted to the entry cadre and promotions to higher cadres are purely based on merit. This reservation  policy extends to recruitment in public sector undertakings, nationalized banks, and other government funded institutions. The reservation in employment is intended to ensure fair representation of SCs &  STs in governance and  development opportunities.

Unfortunately reservations in jobs have undergone serious erosion depriving substantial job  opportunities for the SCs, STs & OBCs. In government sector recruitment as per quota was only in the last grade employment (Group D). The new policy of outsourcing watch & ward, peons &  messengers, and other group D or Class IV employees has totally taken away almost 70% of the  government job opportunities available to the SC/ST communities. In the case of Class III or Group C employees and above the quotas were never filled up resulting in de-reservation and filling up of the  reserved vacancies with elite community candidates. In case of civil service recruitments, the quota was never filled  up above 4 or 5 percent. This happens when the country is having lakhs of SC/ST graduates, post graduates  and doctorate degree holders. The flimsy reason attributed for not filling the reserved quota is non availability of “competent” candidates.

It is quite fun to note that for civil services there is a criteria of essential qualifications for the  applicants. Then there is a two tyre test. The preliminary and the final. If there is an essential qualification  then test is only to grade the available candidates for calling a certain proportion of candidates for  interview based on the number of vacancies for each category. This call shall be category wise  proportional to the number of vacancies in the quota. This does not happen. Instead the UPSC decides  a cut off score for initial and the final test, which many of the reserved candidates do not achieve as their  economic background cannot support costly coaching classes. The net result is the elite community  candidates get through the cut off score as they are spoon fed by well-paid intensive coaching, whereas the best SC/ST candidates do not get through for the reasons explained above. Those few SC/ST  candidates who clear the tests are obviously the children of educated government employees. On the  other hand if the best performing SC/ST candidates meeting essential qualifications are inducted and  provided the training, they will definitely turn out to be better serving and development oriented  bureaucrats in government service. There is no judiciary or government authorities to see these  anomalies, which cause the very poor representation of SC/ST personnel in responsible positions.  Instead they see only that the few SC recruits in higher positions are the children of educated and  employed SC/ST parents, which a judge classifies as “creamy layer”. The fact that if there were eligible candidates among the noncreamy layer or under represented SC communities, the quota will not remain vacant. Therefore the argument of the SCI judgment that the non-creamy layer and certain Scheduled .

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Caste communities are not getting reservation quota is baseless. The fact is that the Government welfare measures  are not reaching certain communities of Scheduled Castes & Tribes to make them qualified. It is well known, the funds earmarked for the development of SC/ST communities, as SCP & TSP funds, go unutilized and diverted for other purposes.

Another major scheme of cutting the employment opportunities for SC/ST candidates is the  planned disinvestment process implemented by various governments. In 1997 with the sale of BALCO,  the Govt. of India started a new policy of disinvestment of Central Public Sector Enterprises (CPSE).  Initially the privatization policy was to disinvest loss making units and now it is a general policy of Govt.  of India for disinvestment of even profit making units and as on 31-03-2015, 58 PSUs were disinvested.

In 2023-24 alone 16 PSUs under Government of India were disinvested, realizing a paltry sum  above Rs 16,000 crores. The huge money realized from the entire disinvestment operations were  invested for infrastructure development without immediate scope for employment generation. This is a  major change from employment generation policy to infrastructure development policy, seriously affecting employment opportunities for SC/ST and OBC personnel. In tune with the Central Govt policy of  disinvestment the State Governments are also operating disinvestment killing the development opportunities of all marginalized communities all over India.

Instead of addressing  this lacuna and without any data on actual SC/ST representation in executive & judiciary, the present SCI order is a concoction to undercut even the marginal representation now enjoyed by the  Scheduled Castes, under the flimsy ground of under representation of certain SC communities & an imaginary creamy layer, which is not even butter milk compared to the rich ruling communities, who bag more than 90% of the higher grade appointments in executive & judicial governance.

3.  Political Representation for SCs

The political empowerment of the marginalized communities, which again is an important role  in governance, the Constitution provides for reservation of seats for SCs & STs in the Parliament (in Lok  Sabha only & no reservation in Rajya Sabha), State Legislative Assemblies and LSG institutions. This is also another way of sharing the power  in the legislation process. In this process too, the real representation is nullified by a subsequent development  called party whip. In practice these SC/ST MPs, MLAs & LSG Members are political party nominees and  so are bound by party policies & whip, which often sideline SC/ST welfare measures. Consequently any SC/ST  MP or MLA or LSG Member representing any SC/ST developmental interest against their party policy is  liable to be removed from the party and may get disqualified. Thus in practice these elected representatives  too are unable to demand/represent tangible SC/ST development programmes.

4.  Judicial Interpretation and Amendments

Over the past few decades, the reservation policy has been subject to judicial scrutiny and  interpretation by High Courts and the SCI. These judicial institutions in India have played a crucial role in  interpreting the reservation policies through important judgments. The Indra Sawhney case (1992) is a  typical example. In this case the Court even though upheld the constitutional validity of reservations, without any basis they imposed a 50% ceiling on the total reservations in public employment and education, in  spite of the fact that the SC/ST and OBC in India add up to more than 80% of indian population. In reality  even today the representation of SC, ST & OBC together in Class I or Group A posts is below 10% and more than 90% of these policy and decision making posts are grabbed by the upper caste  communities, more clearly the Brahmins.

The poor representation in higher posts obviously due to denial of recruitment and also due to  denial of promotion on the flimsy grounds like administrative efficiency made the then government under  Indira Gandhi and Jagjeevan Ram to amend the Constitution, (77th Amendment 1995), which introduced  Article 16(4A), to enable reservation in promotions for SCs & STs in government jobs. Even though here  and there some good leaders will come and change the rules and regulations with constitutional  amendments, the situation returns to original condition as the authorities to implement the rules and regulations in judiciary and executive are dominated by brahmins and other high caste personnel, who  are even today guided by the age old Manu Smriti and Sanatan and not the constitution and the principles of equality, liberty & fraternity. One literally feels ashamed to see the “learned judges” of modern days after taking oath to protect the Constitution of India, drawing inspiration from the outdated & irrational Manusmriti and Sanatan for their judgements!

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5.  Challenges and Criticisms

While the reservation policy has some contributions to the development of SCs and STs, it has  also invited more critics and enemies. There are arguments that the reservation policy perpetuates the caste  system and may lead to discrimination against non-SC communities. One recent criticism even from sitting judges is on the emergence of a "creamy layer" within the SC community, who disproportionately reap the reservation benefits. These critics raise the hue and cry that some relatively  well-off SCs are repeatedly reaping the reservation benefits. These critics do not see that in spite of the  “SC creamy layer” repeatedly reaping the reservation benefits, more than 50% of the reserved vacancies  are lying vacant due to “non- availability of qualified candidates”. Why are these vacancies not filled up  by non-creamy layer SC candidates or the under- represented SC community members? These critics may please understand that the purpose  of reservation is to create a role for marginalized communities in governance of the nation and states so  that due benefits are extended to members of the marginalized communities while policies and programs are  implemented for development. This representation will be effective only if a capable representative is in  position. The exclusion of “creamy layer” rather capable candidates will totally defeat the very purpose of  effective representation of SC/ST personnel in governance. In other words the exclusion of creamy layer is also designed to reduce the present name sake SC  representation in governance as well as make the minor representation ineffective seriously affecting the  developmental objective of SC communities. These and other similar challenges ordered by some High Courts, the SCI had struck down by a five judge constitution bench, in 2005. The present Supreme Court judgment dated 1.8.2024, in State of Punjab and others –vs- Devinder Singh and others,  totally discarding the findings of the Constitution bench in E.V. Chinnayyas’ case 2005, approves authority of the state governments to sub classify the homogenous group of Scheduled Castes into subclasses for the purpose of reservation. One SC judge even recommended implementation of creamy layer among SCs.

This SCI judgment without any data, exposing an ulterior  motive to torpedo even the present level of recruitment under reservation in effect is a tool  to make more vacancies available to upper caste candidates. The CJI, otherwise reputed as a philanthropic judge and an Scheduled Caste  Judge also are parties to such a baseless judgment without any valid data, raises serious questions on the rationale of SCI judgements. The fact that SCI has sought the opinion of the Government and the Modi Government is  reported to have given NOC for sub classification of SCs, further prove that the present Central Government and  the SCI are hand in glove to further disintegrate the SC community for political gains. It is a consolation  to see the wisdom in the sole differing judgment of Justice Bela that sub classification of a homogenous SC  group is unconstitutional and amounting to tinkering with the Presidential list, which only the Parliament of India is empowered. True, it is a divisive attempt to disintegrate the emerging consolidation of SC/ST  communities in India.

The background being this, it is worthwhile to note why the Chief Justice of India & the Supreme Court of India are not looking into the allegation that all SCI  and HC judges come from some 300 families in India? Why not the SCI recommend a legislation to  exclude the super creamy layer family members of SCI/HC judges being appointed as judges? India is a  democracy and not a monarchy. It is time to do away with the self-appointing collegium appointing judges and to install a democratic collegium for selecting judges. The US model of a presidential nominee approved by a simple majority in both houses of Parliament will be a democratic model to appoint Judges of High Court and Supreme Court. Unless such a democratic system comes the High Courts and the Supreme Court will have  Judges pronouncing judgements quoting the outdated Vedas, Manu Smriti, etc. instead of the  Constitution  of India.

Similar is the issue of “halwa distribution”, a poser by Rahul Gandhi on the finalizing of annual budget 2024-25  by the Finance Minister of India. In the group which plans the annual development plans and budget there is no  representation for the vast majority of SC, ST, & OBC. Same is the case with the Prime Minister’s Office which decides the country’s priorities. No representation for marginalized  communities in planning and formulation of national programmes and policies. The judiciary and the  executive making and interpreting future plans shall have proportional representation for marginalized  communities. We are lagging in such a logical approach and that is why no tangible SC, ST & OBC  development happens even after 77 years of independence and tinkering of constitutional provisions with  issues like sub classifications, creamy layer, etc. are coming up.

Conclusion

Reservation for Scheduled Castes & Tribes in India is a very important tool for social justice, equality and  fraternity, aimed at addressing historical wrongs and to ensure access & a fair representation for marginalized communities in governance. The reservation policy remains a cornerstone of  India's commitment to build an inclusive and egalitarian society. But continued efforts are necessary to refine  and adopt the reservation system effectively to achieve the evolving needs of SCs, STs, OBCs and to ensure social,  political and economic equality. The concept that the Panchamas & the Shudras have to serve the other  three varnas unconditionally as unpaid servants is still in operation in the Indian society, which forms the  basis of the willful denial of even the proportionate representation in judiciary, executive and a due role in development programs & budgeting the national development.

In this context the creamy layer and sub classification among SCs can be seen only as a tool to  disintegrate the gradually progressing homogenous group and undercut their planned development as  envisaged in the constitution, so that these outcast communities will remain confined as low paid servants  of the higher ups. Therefore the provisions of reservation and the Scheduled  Castes as a homogenous group shall remain undisturbed until they are socially, economically and politically  on par with the mainstream communities. Then only India will achieve the  great dream of equality, liberty and fraternity as envisioned by the founding fathers of our Constitution. So constitutional generosity demands that the Parliament shall take up necessary legislation to include  the SC/ST reservations as an exclusive prerogative of the President of India under section 9 of the Constitution to avoid tinkering these provisions by any  agency.