Issue 64 Vol III, May 31, 2008

L A W  &  J U S T I C E

Reservation mirage
Joginder Singh Toor

IN the latest bout of violence at least 40 Gujjar agitators have died, scores have been injured. There have been daily clashes with the police and the military that has been summoned to meet the challenge. There has been huge damage to the public property; buses, railway tracks and trains. Many roads as well rail routes are blocked for days in Rajasthan, Uttar Pradesh and Haryana. They are asking for scheduled tribe status under the constitution.

Earlier Jats of Rajasthan demanded the same. Whose counterparts in Punjab had resented Lahore High Court 1926-27 judgment that “Jats in Punjab are Shudras”? Not isolated to Rajasthan, the struggle has been going on in various states for claim to scheduled caste or scheduled tribe status. They were earlier abhorred and condemned, hated.  They were shunned as untouchable class. What is the treasure trove which lies buried under this newly discovered status, for attainment of which people are ready to sacrifice their lives and liberties to achieve some thing that may ultimately prove a mirage?

The constitution makers while providing guarantees to some of the primary rights, declared fundamental rights, assuring equality before law and equal protection of the laws, in the same terms as is provided in the U.S. Constitution. They had to carve out certain niches for the protection of the weaker sections and the downtrodden of the society. In Article 14 and 15 the constitution prohibited discrimination and provided for protection of and special provisions for women and children. Article 16 guaranteed equal opportunity in matters of employment or appointment to an office declaring that no person shall be discriminated  on the grounds only of religion, race, caste, sex, decent, place of birth, residence or any of them.

The concern regarding the weaker section was taken care of in clause 3, 4 and 5 of Article 16, declaring certain sections which permit the state to make provisions for the reservation in employment or appointment to posts in favour of any backward class of citizens, which in opinion of the State is not adequately represented in the services of the state.

Article 15 and 16 though cover the same aim, yet are different in some matters. Article 15 is wider in operation, lays down a general rule and prohibits discrimination in respect of all or any matters on five grounds that is religion, race, cast, sex and place of residence. Article 16 prohibits discrimination in respect of matters of employments and filling of posts (such as, constitutional posts). It is wider in the sense that it prohibits discrimination on “descent” and “residence” also, which is not included in article 15. However article 16(4) is an exception to the general rule. It confers no rights, it provides a way up. It is nor mandatory also. It is instance of classification implicit in and permitted in it.

In Indira Sahni vs. U.O.Y, a nine judge bench of the Supreme Court, judgment clarified certain matters regarding article 16(4). That it implies a separate quota which is reserved for a special category of persons. The purpose is to protect the weaker category against competition from the open category candidates. It implies selection of less meritorious candidates and that this much cost has to be paid if the constitutional promise of social justice has to be redeemed. The provision for reservation may be made either by law or an executive order issued in the exercise of the powers of the state without legislative support. In Valsamma Paul vs. Cochin University controversy regarding acquisition of rights to reserve category by implantation such as marriage, adoption, conversion or any other voluntary mobility was negatived. No rights are achieved or conferred by these acts.

The terms schedule caste and schedule tribe or backward classes are not specifically defined in article 366. However its clauses 24, 25 say that these are to be identified in accordance with the provisions of articles 340, 341, 342 which provides for the appointment of a commission to identify the socially, educationally and economically backward classes in various parts of India and to submit a report to the president of India. The President in consultation with state governments is to publish the list of SC, ST and BC entitled to benefits of reservation.

The Constitution (Scheduled Casts) Order 1950 as amended from time to time, contains the names of castes and tribes relating to the respective states mentioned therein. It still contains a clause modified slightly to read “4(3) notwithstanding contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be member of   Scheduled Caste.”   This obviously is a patent denial to socially or economically backward people of other religions such as Muslims and Christians to claim rights against reservation.

The appointment of a permanent Commission for Schedule Castes and Schedule Tribes by sixty fifth amendment to the Constitution in June 1990, to identify difficulties in implementing the safe guards provided in the Constitution or related laws regarding SC/STs, and to enquire into complaints etc. has not been effective enough to bring all down trodden into the fold of protection/exceptions of Art.15 and 16.

The hopes of the people that their inclusion in the list of SC/ST would ensure employment and the demand for the same from various quarters is ill conceived for the reasons that education is being transferred to private hands. It has become so costly that for an ordinary family it will be unimaginable to have their children or wards getting educated to compete for high posts.

In Unikrishna’s case the Supreme Court allowed 50% seats in unaided/affiliated colleges/ institutions to be filled by the management on payment basis subject however to inter-se seniority. The education in the near future is going to be a monopoly of the rich only. The social organizations and political parties if really concerned about the welfare of people must give pointed attention to this aspect.

Even for Schedule Castes and Schedule Tribes the exclusion of sons and wards of creamy layer; class 1, and class 11 , govt. officers, colonels and above of the army, the private hands earning  above a certain amount, previously it was one lakh annual now modified from time to time, and many others have been excluded from the benefit. The rest of the lot, not being able to afford education will naturally not able to contest and compete.

The common people of India are in for a major shock. A high ending educational conspiracy to monopolize education, if not taken note of now, is likely to play havoc and cause social and economic catastrophe. It is time to rise and think deep and sublime.  The inclusion in the list will not ultimately help.

[Joginder Singh Toor, Advocate, jogindersingh_toor@yahoo.com Mobile 91- 98151-33530]

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