Reservations and the Ninth Schedule: Lies and facts

The Red Queen broke the silence by saying to the White Queen, `I invite you to Alice’s dinner-party this afternoon.’
The White Queen smiled feebly, and said `And I invite you.’
`I didn’t know I was to have a party at all,’ said Alice; `but if there is to be one, I think I ought to invite the guests.’
`We gave you the opportunity of doing it,’ the Red Queen remarked.

                                                                                                      ---Through The Looking Glass 

Political parties including the Dravid Munnetra Kazhagam (DMK) had recently approached the Supreme Court of India regarding the application of 50% reservation for the Other Backward Classes (OBC) Quota to the State surrendered seats in medical undergraduate and postgraduate courses through the All India Quota. They had filed petitions under Article 32 of the Constitution of India. At the hearing the Court queried as to what fundamental right was breached in the acts forming the basis for filing of the petitions. Stating that a petition under Article 32 lies only against breaches of fundamental rights, the Court pointed out that reservation is not a fundamental right. That being so, the omission to reserve 50% in the AIQ seats for medical courses cannot be challenged directly in the Supreme Court. The petitions were disposed of with liberty to file appropriate matter in the High Court.

Reservation lies solely within the discretion of the State. If the State does not extend benefit of reservation, the matter cannot be agitated in Constitutional Courts, because reservation is not a fundamental right. The speaking order in the matter does not mention all of this, but the reporting of the news carried this bit, and the fact of the Supreme Court so observing was spread far and wide.

In February 2020, in the matter of Mukesh Kumar vs. State of Uttarakhand, the Supreme Court had declared in no uncertain terms that a policy of not extending reservation in a particular matter cannot be challenged in Courts. In the din of other newsworthy bits of information, this epoch making judgment was relegated to single column reports in newspapers. There was no noteworthy analysis of the news in the mainstream media. 

About the judgment in which the Supreme Court ruled that reservation is not a fundamental right. 

This fantastic bit of news for the open category was not widely noticed or commented upon, but the newspapers did report it. Promptly, the proponents of reservation fired salvoes of their own.  Noises, appropriate or otherwise were made. The causes for reservation and the justification for the same were reiterated. There is reason for taking note of these events now. The happenings in the Supreme Court regarding Tamilnadu pleas for reservation, and the dry opinion expressed by the Court during hearing prompted many reactions. Ramvilas Paswan, a big proponent of reservation and a longtime Minister in various governments, peremptorily called for action. “All political parties should come together to amend the Constitution to shield all reservation laws from judicial review,” he’s reported to have said. His demand to put all the reservation laws in the Ninth Schedule of the Constitution were of a piece with the earlier statement of his son, Chirag Paswan, himself a Member of Parliament and President of the Lok Janashakti Party; a constituent of the ruling National Democratic Alliance (NDA) dispensation.

Ramvilas Paswan, however, carried it further. He demanded that reservation be included in the fundamental rights. Most importantly, he lied about the antiquity of reservation, invoking Gandhi along with Ambedkar to (falsely) add antiquity and historicity to the idea of reservation. “Reservation is the result of the Poona Pact between Babasaheb Ambedkar and Mahatma Gandhi. If anyone raises ifs or buts about it now, they will be negating the Poona Pact,” The Hindu reports him as saying.  

A responsible and powerful leader, and a long standing Member of Parliament making this statement is not a coincidence or a spontaneous reaction to the event of the day.  These sort of statements, particularly to the media, are deliberately made as an agenda. A part of this agenda is false propaganda. Any event going against some idea, attitude or government policy is deliberately played up. The dual intention behind this propaganda is to confuse opponents of the idea and to encourage adherents and proponents of the policy.

Paswan’s statement has caused a stir amongst the open category. Messages are doing rounds of social media. The helplessness of the open category burdened by the ever increasing quota of reservation manifests itself in anger about the government. The goals of Paswan and his ilk are achieved merely by this. Yet, the more lasting effect will be that the enjoyment of the real news is denied to the open category. The very motive might well be to deprive a conversation about the fact that according to the Supreme Court, reservation is not a fundamental right. This article is an attempt to throw light on historical facts and principles of law applicable.

As held by the Supreme Court recently, in a reasoned judgment in Mukesh Kumar vs. The State of Uttarakhand, reservation is not a fundamental right. The idea of reservation in education and employment did not find place in the Constitution. It was later inserted as an exception to the fundamental right of equality, dubbed the first principle of the Constitution by Dr. Ambedkar. In reaction to this, Chirag Paswan had made the same noises as Ramvilas Paswan is making now.

Reservation is the biggest fraud played upon the Constitution.  

The Ninth Schedule was inserted by the First Amendment to the Constitution. It named certain laws which would be beyond the purview of judicial review for violating fundamental rights. The contemporary reasons for the insertion of the Ninth Schedule are not germane to the issue at hand. Yet, the Ninth Schedule assumes significance because it is widely (yet wrongly) believed that 69% reservation is prevalent in Tamilnadu only because the law regarding the same is inserted in the Ninth Schedule, and that it cannot be challenged.

In fact, the cap of 50% reservation was imposed by the judgment in Indra Sawhney only in 1992. The 69% reservation in Tamilnadu was in effect and implementation much prior to the said decision of the Supreme Court in the matter also known as the Mandal Commission case. Tamilnadu was forced to enter the law regarding reservation in the Ninth Schedule only to continue the existing arrangements. Even then, the matter of reservations in Tamilnadu exceeding 50% is subjudice before the Supreme Court.  

In the meanwhile, the Supreme Court has ruled that the insertion of an Act in the Ninth Schedule would not preclude it from judicial scrutiny. It is therefore no longer sufficient that a law be added to the Ninth Schedule to take it beyond judicial reach. The idea of the Paswan duo has another hurdle to cross. The discretion o extend reservation is within the discretion of the States and there are different laws for different states with different provisions regarding reservation. The vast size of the country and the diverse conditions prevalent in various parts means that the evolving conditions have made it necessary that there be laws, rules, and other species of policies having force of law in various states.

As for Maharashtra, the Maratha reservation was introduced by a separate law, known as the SEBC Act in short. The Economically Weaker Section (EWS) category of reservation, inserted by a Constitutional Amendment was extended by a notification. The validity of the Maratha reservation, taking the total beyond the 50% limit set in Indra Sawhney is subjudice and the result is awaited soon.

The Supreme Court and Maratha Reservation 

Secondly, changing fundamental rights or adding to them is a complicated process. Paswan is too big a leader not to know this. It is hence necessary that his fulminations are debunked. As to the Poona Pact, reservation in education and employment was not a consideration at the time when it was signed by and between Dr. Ambedkar, Madanmohan Malaviya, C. Rajagopalachari. The Pact was to the effect that 148 seats in the Provincial Assembly were to be reserved for the depressed classes. It was signed in 1932, whereas the reservation in education and employment were provided much later than the adoption of the Constitution of India in 1950. The Poona Pact has nothing to do with the topic at hand.

It has been held by the Supreme Court in many matters that reservation is not a fundamental right. By asking the political parties who had filed petitions to approach the High Court, the Supreme Court of India has clarified the scope and limitations of its powers regarding reservation.

Proponents of reservation will try deliberately steer away conversation from this important topic.  It is imperative for them to contrast the fallout of the judgment, and they will do so by making pointless and false allegations and state patent lies. The desperate act of somehow associating Gandhi with reservation is one such ploy. All that the open category people and opponents of caste based reservation can do is to understand the issues and to make others aware of the same. Informed action to eradicate the evils of caste based reservations is the need of the hour. Understanding the importance of events is the key to it.

© Adv. Shrirang Choudhary

The latest Supreme Court Judgment should be a source of joy to all open category people

In a landmark decision, the Supreme Court has enunciated provisions regarding reservation in promotion. In a case arising out of reservations in promotion of Assistant Engineers in the State of Uttarakhand, the Supreme Court has ruled that the provisions of Article 16 (4) are merely enabling. They confer no right whatsoever on candidates. If the State decides as a policy not to provide promotion in reservation, the Courts cannot issue orders to the effect that it should be so provided.

Click here for a version of this article in Marathi  

In this context it is good to note that after formation of the State of Uttarakhand, which was carved out of Uttar Pradesh, the then existent laws and rules were adapted by the new State. Policies regarding reservations too, were continued. Yet, some pleasant changes were made. Amongst them was that the percentage of OBC reservation was reduced from 21% to 14%.  Another major decision was taken by the Uttarakhand Government on 05.09.2012, when it was decided that all posts in public services in the State shall be filled up without providing any reservations to the Scheduled Castes and Scheduled Tribes. In the proceeding of that date, all the Government orders in contravention of this policy were superseded.

The said decision was challenged by an employee belonging to the Scheduled Castes. The High Court of Uttarakhand allowed the writ petition and decided that the proceeding Dt. 05.09.2012 was contrary to law. The respondent in this petition i.e. the State of Uttarakhand sought a review of the judgment. On review, the High Court decided that the State should gather quantifiable data to assess the adequacy or otherwise of representation of SC and ST employees in services of the State, and after considering the same decide whether to provide reservations in promotion.

What is the percentage of open category people?

On the other hand, some other employees filed a writ petition in the High Court seeking directions to the effect that the government prepare separate lists of candidates belonging to General, Scheduled Castes and Scheduled Tribes category in order to consider them for promotions. The writ petition also sought further directions to the effect that the government appoint a committee for promotion to Scheduled Castes and Scheduled Tribes candidates after applying reservation as per the rules existent at the time of their appointment. The rules provided reservations in promotion. The High Court ruled that the government should implement reservations in promotion. Further, it was directed that only candidates belonging to SC and ST category should be promoted so that the quota as provided for the said categories was fulfilled.  

The Supreme Court, by its order Dt 07.02.2020 decided that the State can as a policy decide not to provide reservations in promotion. The decision of Uttarakhand High Court directing the State to gather quantifiable data was set aside in view of the fact that the government already had collected the same. The Supreme Court has in this judgment clarified the position of reservations in promotions, constitutionality of policy of reservations and collection of quantifiable data.  

The points that were considered while hearing matters arising out of the above two matters were

1)       Whether the State Government is bound to make reservations in public posts?

2)       Whether the State Government is bound to consider adequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes on the basis of quantifiable data before deciding not to provide reservations?

Ultimately, both the questions were answered in the negative. The decision of Uttarakhand government not to provide reservations in promotion to the employees of SC and ST categories was adjudged to be perfectly valid.

Following are the highlights of the Supreme Court judgment:

1)       The State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions.              

2)       Inadequacy of representation of SC and ST categories in public employment is a matter within the subjective satisfaction of the State. Whether to provide reservation or not is solely within the discretion of the State, but the decision should be supported by quantifiable data.

3)       All decisions regarding reservation on the basis of lack of adequate representation asre open to judicial scrutiny.

4)       Collection of data regarding reservations is necessary only when reservations are to be provided. Because the State is not bound to provide reservations, there is no need for the State to provide data to show that there is adequate representation of SC and ST category candidates.

5)       Courts cannot direct that all vacancies should be filled from the SC and ST categories only.

The judgment of the Supreme Court should be welcome news for all open category candidates and people against the excesses of reservation. It is good in itself that somewhere in India there has been reduction in percentage of reservation. It is great to know that a State decides not to provide reservations in promotion at all. And it should be a source of profound joy for all right thinking people that the Supreme Court has sided with the prudence exercised by the State of Uttarakhand.

Tailpiece: Search of the entire 23 page document gave a heartening result. There is no mention of the word “merit” anywhere.

                                                                             © Adv. Shrirang Choudhary

Understanding the order regarding Madhya Pradesh OBC quota

In an historic interim order, the Madhya Pradesh High Court has stayed the implementation of increased quota in the OBC reservation. The reservation for OBC in Madhya Pradesh was increased from 14% to 27% by the Congress Government led by CM Kamal Nath in 2019. The related Amendment Act was challenged by the petitioners, who had also sought a stay to the implementation of the enhanced quota in the recruitment of employees in Classes II, III and IV by the Madhya Pradesh Public Service Commission.

More than 400 posts to be filled by the advertisement issued in 2019 would be affected by the order. It should be noted that the recruitment process had almost been completed. Only the final selection list was awaited. However, despite many opportunities being granted, the M. P. Government had not filed its say to the interim application. On last date, the High Court had directed the government to file its say on 28th January, the next date fixed for hearing. However, despite seeking repeated adjournments the M. P. government did not file its say.

The High Court thereafter ordered that the recruitment process may continue, provided only the earlier existing 14% quota is applied for OBC reservation.

It is contented by the petitioners that the increased quota takes the total reservation to 63% which is beyond the 50% mandated by the Supreme Court in Indra Sawhney’s case. It is a point of interest that the crux of the case against Maratha reservation is that it increases the reservation beyond that limit.

Maratha Reservation in the Supreme Court, a look. 

The order assumes importance because it is interim in nature. The long pending process of recruitment will have to be completed. Hopefully, that rules out the mischief governments do by way of Ordinances. In any case, this is welcome news. Time for celebration. Hope the tide is turning to the benefit of the open classes.

Tailpiece: The recruitment process (मेगाभरती) in Maharashtra was in effect stayed in the cases against Maratha reservation. As for reservation in education, the original Act provided, per S. 16 (2) that the reservation was not applicable to courses to which admission process had begun prior to the SEBC Act coming in effect. Only the totally obnoxious mindset of the government, expressed by the much hated Ordinance promulgated by the GoM caused the devastation for the 2019 medical PG and UG batches.

©Adv. Shrirang Choudhary

Dhangar quota – demands, promises and reality.

Dhangar quota – demands, promises and reality.

The Dhangars in Maharashtra have been agitating for reservation under ST category since decades. Currently they get reservation of 3.5% under the Nomadic Tribes (C) category. Till the Maratha reservation, Dhangars were the largest single community to be included in a category on its own. Their population is estimated to be about 10% of Maharashtra’s population.

Their demands have been scaled up after the State quota granting 16% to Marathas and the Central quota granting 10% to EWS were announced. Their demand is seemingly simple, and made to look so by the assurances of leaders unaware of the practicalities of the matter. They want to be included in the ST with the existing reservation being added to the overall reservation for STs, which is 7%. The catch is that percentage of Constitutional reservations can’t be changed at the whims of state policymakers. It is for the Parliament to amend the Constitution.  

Inclusion of this or that community in ST category is the prerogative of certain Central bodies apart from the state Government. The National Scheduled Tribes Commission and the Registrar General of India have to concur with the recommendation of the State government for the inclusion of a particular community in the ST. Thereafter, the matter is referred to the Parliament for amendment of the Presidential Order.  

All of this only for the inclusion of the community in ST. Increasing the percentage of reservation for Sts is altogether another matter and seemingly impossible in the current scenario in Maharashtra already reeling under the impact of 74% reservation.

The Dhangar community, however wants to retain the reservation of 3.5% and at the same time to get protection under the Atrocities Act, exclusion from creamy layer criteria and certain other welfare benefits available only to the SCs and STs.

Maharashtra CM Devendra Fadnavis had promised that the Dhangar community’s demand would be complied with in the very first cabinet meeting. However, the power to fulfill their demands is with the Centre. The STs are apprehensive that the inclusion of Dhangars in their category would affect their chances. They are opposed to any new inclusion.  

Total reservation in the state is now 74% for education and 75% for employment. The Bombay High Court has suggested that Maratha reservation should be 12% for education and 13% for employment. Litigation regarding validity both of the Maratha and the EWS reservation is pending before the Supreme Court. In the circumstances, there seems no need to be panicky about declaration of the latest policy of the government. If it is true at all.

                                                                                                     ©Adv. Shrirang T. Choudhary

Reservation is the biggest fraud played upon the First Principle of Equality

Reservation in education is the biggest fraud played upon the first principle of fundamental rights i.e. equality. 

 ‘Divide a loaf by a knife—what’s the answer to that?’
‘I suppose—’ Alice was beginning, but the Red Queen answered for her. ‘Bread-and-butter, of course. Try another Subtraction sum. Take a bone from a dog: what remains?’
Alice considered. ‘The bone wouldn’t remain, of course, if I took it—and the dog wouldn’t remain; it would come to bite me—and I’m sure I shouldn’t remain!’
‘Then you think nothing would remain?’ said the Red Queen.
‘I think that’s the answer.’
‘Wrong, as usual,’ said the Red Queen: ‘the dog’s temper would remain.’

-Through the Looking-Glass

 

Article 14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.  

Article 15. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 

Article 16. Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State

 (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.

These are the contents of the Constitution of India. It is held sacred by the many who were and are deriving benefits of the flagrant violation of the first principle. 

The First Amendment of the Constitution of India trampled upon the fundamental rights of majority of Indians. It amplified Art 15 (3) by adding 

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

This is genesis of powers of the State to provide reservation in education.

The belief that the Constitution provided reservation in education only for 10 years is incorrect. The provision for 10 years applies to reservation of seats in Lok Sabha, Assemblies and elections to local bodies. Contrary to common belief, the politicians have not been extending reservation in education. That reservation is open-ended. It is not likely to stop after ten or twenty years. It’s designed to go on forever.

As is the reservation in government jobs.  They may shrink. The government may downsize its operations. Class IV jobs may be outsourced. But the government goes on increasing percentage of reservation, regardless of consequences. Reservation means not only provision of seats, but fees subsidized by the State, special provisions for lodging, boarding, scholarship and training for the new reserved class. Plus the other economic entitlements in the name of special provisions like soft loans via various Backward Class Development Corporations, apprenticeship in government run institutions etc.

Nondiscrimination on grounds only of religion, race, caste, sex, place of birth or any of them was a fundamental right. Reservation curtailed it. Reservation discriminates between otherwise equal citizens on all grounds that the Constitution specifically prohibits. Reservation is the worst form of discrimination. It continues for generations. Its benefits are gained by birth and not by any voluntary act. 

Reservation is not a fundamental right: Supreme Court  

Neo-Buddhists, converts from one religion to another enjoy reservation. The category Scheduled Tribes is discrimination on account of alleged race. They are described as original inhabitants [मूलनिवासी] by the radical elements, thereby stamping all others as outsiders. Reservation for Scheduled Castes [SC] is discriminatory on ground of caste. Birthright of reservation to ward of a reserved category student is discriminatory on ground of descent. Domicile rules are discriminatory on ground of place of birth and residence.

The State discriminates on all grounds prohibited by the Constitution. Maharashtra, Andhra Pradesh have provided reservation to Muslims, based on their religion. Maratha reservation has been granted on the basis of caste. The reservation for female seats on various local bodies is perverse discrimination on the ground of sex.

Constitutional principles are followed more in breach than in compliance.

Constitution has been amended 103 times, altering its nature. Today, it’s a caricature of the all-inclusive, benevolent, egalitarian document that it was intended to be. Far from inducing fraternity amongst citizens, the seeds of discord sown by the discrimination are bearing ever bitter fruit.

The worst changes have been the provisions enabling reservations. Though founding fathers debated about the quantum of reservation, no time limit was provided. Though the Constitution provides for socially and educationally backward classes, no yardstick has been devised in the seventy years of its functioning to define what these classes should mean and include. The age old division of castes has been perpetuated and further entrenched by reservation policies. The very caste which was the basis of discrimination is now a source of fierce pride. Far from annihilation of caste, the reservation system has made caste the primary identity.

Qualification and eligibility for professional courses has been diluted from time to time. There is now no minimum qualifying marks criterion for reserved category candidates. The disparity in cut-off numbers is gut-wrenching. The meritorious get admissions to the prestigious colleges in branches of their choice. Merit is a matter of distinction amongst the eligible and qualified. So the cry of “save merit” is a misconception. Merit is already safe. What is at stake is the fate of the ‘other’ qualified and eligible students. They are the most affected by reservation policy.

Traditionally, medical education has been the most sought after field for the topmost talent in India. But increasing percentage coupled with so many parallel reservations frustrates the efforts of students to secure a seat in an adequately equipped government medical college. After their studious efforts at securing sufficient marks in qualifying examinations yield expected results, reservation snatches away their chance to get any seat in a professional course. The better off amongst them are forced to seek admissions in private colleges or deemed universities at exorbitant cost. Rest of the talented pool is just refused the reward for their dedicated study for four or more years.

Situation is similar in colleges offering other professional courses. The IITs lose many students in the first year itself, leading to loss of utilization of infrastructure and manpower deployed at huge cost.

All around the country, there is outcry against the poor quality of teachers appointed from reserved category. There are news about villages striking to protest against appointment of substandard teachers appointed on reservation quota. The adverse impact on excellence in work and administration due to appointment of under-qualified candidates to responsible government posts is being subjected to ridicule on social media. 

The end is not in sight, but the battle has begun. The open category is owning up to its past and claiming impartiality. Why should they suffer for the alleged excesses of their ancestors? Why should a person incapable of doing routine calculations find his name in the list of admissions to prestigious colleges? Why should a person scoring zero in two subjects out of three be held eligible for admission to a professional course where much more qualified candidates do not get a seat?

Reservation as it exists today is the curse of India. Rethinking reservation policy may provide resurgence of India as a dominating force on the world map. Reservation, quota or आरक्षण; by whatever name called, the special provisions made by the government for advancement of backward classes are hated by people who do not benefit by it. Much has happened since the adoption of the Constitution about seventy years ago. Yet, there has been no review of the widely despised policy.

According to critics, the unending conferral of benefits on people born in certain castes (above 500 in Maharashtra) is inherently flawed because caste alone does not make a person disadvantaged. Further, the benefits include not only procuring seats but also in scholarships, fees waiver, lower qualifying marks and age relaxation etc. The list goes on. They include advantage in chance of education, post-graduation, employment as well as promotion.

Reservation in education and employment is a hot topic of discussion, particularly amongst the youth and their parents. With ‘career’ being of utmost concern, Indians view good education as a guarantee of assured economic wellbeing. Employment on salary is a gateway to a safe life in India where very few people think of starting a new venture unless they are forced to. 

Since the extension of reservation to Marathas in Maharashtra [SEBC] and Economically Weaker Sections [EWS] by the Centre, the debate around reservation has taken a new head. It intensified after the statement of RSS Chief Mohan Bhagwat that there should be a cordial debate between those opposed to reservation and those in its favour. There is renewed awareness about the issue, but little understanding of it. 

The beneficiaries of reservation have appropriated Constitution as a sacred text. The government has endorsed this by making reading of the Preamble mandatory on certain occasions. The Preamble has literally been engraved upon prominent places in premises of Courts and other official places. But the Constitution did not originally provide for reservation in education and employment. 

The Constitution provides reservation for political offices i.e. the Panchayats, the Lok Sabha, the legislative assemblies of the States and the Municipalities. And those reservations are for a specific period. The Constitution of India originally provided

Article 334.

Notwithstanding anything in the foregoing provisions of this Part, the provisions of Constitution relating to

(a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States;

[and (b) xxxxxxx]

 shall cease to have effect on the expiration of a period of (ten) years from the commencement of this Constitution.

The ten years have been unanimously extended every ten years. The seventh extension will expire in 2020. The original (ten) years has been replaced by (seventy) vide the 95^th Amendment to the Constitution.  

The part of the Constitution enabling the State to make provisions for advancement of backward classes or Scheduled Castes or Scheduled Tribes is contained in sub-clause (4) of Articles 15. This was introduced by the First Amendment to the Constitution in 1951. The First Amendment was the first and biggest blow to the idea of qualification and competence being the criteria for selection for education. The first thing changed in the Constitution was the assurance of equality of opportunity and non-discrimination.

In the name of special provisions, the pitch was queered for under-qualified and substandard candidates. The very idea of non-discrimination and equality of opportunity was subverted by the introduction of special provisions, the foremost being reservation.

The enabling provisions have been used by State Governments to confer untold benefits upon the ‘reserved’ categories. As mentioned above, the list is endless. The socialist welfare state idolized by Nehru, and modeled on the U. S. S. R. meant that the government took upon itself the upliftment of the citizens. The Social Welfare Department schemes are virtual charities dispensing aid to all; looking for opportunities to bestow benefits on as wide a range of citizens as possible. For a resource hungry nation such as India, this is a disastrous policy. The special measures to be taken by the government for the downtrodden could have been a good step towards removal of inequalities. On the contrary, it has created a society polarized between the privileged at birth by reservation and those qualified for the seat by hard work.

Fundamental Rights, the third part of the Constitution in which the right to equality and prohibition of discrimination on the grounds of “religion, race, caste, sex, place of birth or any of them” are enshrined itself empowered the government to trample upon the rights of millions of deserving candidates from getting seats in education or employment that they deserved. There is no end in sight. The demands for evermore concessions, facilities and privileges are ceded by state governments. They do so to please the sizeable population which has been voting en masse for parties giving sops. More and more castes, groups and communities are seeking reservation or inclusion in a category with more opportunities. Powerful communities which have ruled states for decades by political strength have become vociferous in their demand for inclusion in ‘backward class’ or for grant of reservation.

The politically strong Maratha community which was categorized as ‘forward caste’ by the Mandal Commission has successfully obtained reservation in Maharashtra as Socially and Educationally Backward [SEBC] Class, the only caste to be so characterized, distinct from the 346 castes included in the Other Backward Classes [OBC]. It is ironic that Kunbis, a caste which has been held to be the same as Marathas, is included along with (Leva, Kunbi, Leva Patidar) Kunbi Maratha and Maratha Kunbi at Serial No 83 of the list of OBCs in Maharashtra. With the Bombay High Court upholding the SEBC reservation at 12% for education and 13% for employment, coupled with 10% given by EWS, Maharashtra students are burdened by 74% reservation.

The provision for reservation in education is discretionary, that is, the government has provided reservation in education as a special measure. The reservation in employment is mandatory. Lost in the din is Article, which 335 provides that claims of the SC and ST shall be taken into consideration while employing people for service in the Union and States. However, the provisions of special measures in employment are to be used only when the government thinks that the backward class is not adequately represented in services under the state. There is no such qualification for educational seats.

Various states have made reservation laws different in percentage and composition. Disparity in reservation in various states is because reservation is a State subject. The only central reservation is the latest EWS. It is yet to be tested in the Supreme Court. Decision on that matter by the Supreme Court will provide a guideline to the future of reservations in India.

Recent events have galvanized the otherwise pliant ‘open category’ into action. Protest marches, dharna andolan, ghantanaad, loud posters against reservation are seen in various cities. Social media is abuzz with unreserved (अनारक्षित) pride. There is discussion about the size and extent of open category. Ways and means of tackling the issues are being discussed. Various organisations with differing aims and ideologies are matching horns for public attention and wider following.The open category has found a new voice to talk about ending reservation.

What is the percentage of the open category?

The nation’s resources are poured into confirming that education qualification tested by scientific methods is the only criteria for successful completion of professional courses. Sadly, that confirmation comes from the high rates of dropouts of students from the reserved category in the first year itself.  

There is bound to be fierce resistance to the increased reservation. How tolerant should the public at large be? The ‘cordial debate’ suggested by Mohan Bhagwat may not happen. But debate and furious discussion around the topic of reservation is underway and thriving.

It is argued that total reliance of the said class on these provisions have made them less competitive. The incentive to study hard is taken away by the assurance of a seat for a reserved category student, and hence their poor performance, goes a theory. The founding fathers believed that the oppressed classes would never be competent to compete with the privileged few on basis of merit.

The insertion of special provisions for Scheduled Castes and Scheduled Tribes was supposed to be bestowal of special favours on an underprivileged class. That has long been turned topsy turvy. A proviso to the Constitutional promise of equality before law given as a fundamental right has become the most potent tool for discrimination against open category students. The ‘special provision’ of reservation has snatched away 74% seats from the open category. Exception has become the norm. Normalcy in education i.e. opportunity on the basis of qualification and eligibility is gasping for survival. Something is seriously wrong.

Time to ask some serious questions. If the reserved category students are otherwise capable, and only the idea of an assured seat is making them complacent, why not remove reservation in seats altogether? And if they are inherently incapable of achieving higher education or competing on the basis of merit with other students, why are the government bent upon so much to make them occupy seats meant for only the best and most studious candidates?  

© Adv. Shrirang Choudhary