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Reservation: The Unmaking Of India"s Constitution

By: Saurav Basu
Jul-16-2008
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This article is a response to those pro reservationists who have been claiming ad infinitum that "reservation is their birthright and they shall have it!" Popular media has not ever addressed the veracity of this claim and instead maintained this dogma as some axiomatic truth without any critical inquiries. The irony is that even an impartial international scholar like Thomas Weiskoff considers the framers of the Indian constitution be in favour of policies of affirmative action in stark contrast to the United States constitution. [See, Affirmative action in the United States and India, Routledge, 2004] Such ignorance needs to be dispelled in this continuing debate over reservation.

Genesis of reservation

Historically, reservation in India was an outcome of British benevolence; who faced with the threat of Hindu nationalism conspired to maximize and augment the lines of caste based division within the Hindu community but they were not exactly confident of success especially in the changing scenario where caste and untouchability were both losing their grip on the Indian psyche! [1] Instead, the British chose the path of least resistance in galvanizing the greater or lesser degree of Muslim antipathy against Hindus through the Muslim league who in return actively resisted any move towards independence and ultimately paved the path towards partition and subsequent riots. The "Minto Morley" reforms in 1909 which legalized separate electorates for Muslims was the first step in that direction.

Caste based electoral representation took another decade to follow in the Montagu Chelmsford reforms. The appeal of casteist parties like the Madras Dravidian Hindu association [precursor of today"s DMK] who declared their noblest intentions to fight to the last drop of our blood any attempt to transfer the seat of authority in this country from British hands to so called high caste Hindus who have ill treated us in the past and will do so again but for the protection of British laws resonated gleefully through the voice of Syndeham in the upper house of the British parliament in 1918 and played a role in shaping of future policy. It was Ramsay Mac Donald who through the communal award of 1932 managed a complete division in Hindu society - by granting extensive and separate electorates for the depressed classes. Gandhi and Ambedkar had a bitter and acrimonious exchange; the former refusing to accept it and Ambedkar hell-bent on its application. Gandhi"s whitemailed Ambedkar using threat of fast unto death until a compromise was reached which is known as the Poona Pact - according to which joint electorates were retained but the number of seats reserved for the depressed classes was increased to twice that offered by the British!

Attitude of constitution framers towards reservation was negative

The framers of India"s constitution were perfectly aware of the deep seated divide in society that the pernicious concept of reservation ushers in. Free India was under no obligation to pursue reservation in the parliament. But they perhaps believed that it would be justified to extend the same for a period, not more than 10 years. Sardar Patel one of the chief architects of the Indian constitution [2] echoed the general opinion by unequivocally stating "that the object of the House should be, as soon as possible and as rapidly as possible to drop these classifications and bring all to a level of equality"

Jawarharlal Nehru was more concerned in perpetuating an evil which might be unnecessary even as he reluctantly agreed to carry on with some measure of reservation but yet there was always this doubt, namely, whether we had not shown weakness in dealing with a thing that is wrong...There is some point in having a safeguard of this kind where this is autocratic rule or foreign rule. But in a full-blooded democracy, such devices in fact end up harming the section they are intended to benefit - the section gets isolated from the general populace, the natural empathy that the society should have for the section gets eroded.

B R Ambedkar who is a demigod for millions of India"s dalits may not have exactly concurred with Patel or Nehru. But his sense of justice was never overwhelmed by emotion. Hence, after due deliberation he believed reservations for any community must be minimal. To quote "Supposing the reservations for a community, the total for which came to be something like 70 percent of total posts and only 30 are unreserved..Shall there be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved.must be confined to a minority of seats"

Review of the Fundamental Rights as originally guaranteed by the constitution of India

The Indian constitution grants its citizens certain inalienable fundamental rights. Unlike any other legal rights, these fundamental rights are protected and enforced by the constitution. It is in effect binding on the state, and protected against invasion by the executive, legislature and judiciary. [3] Article 32 of the constitution allows any citizen of India to approach the Supreme Court if his fundamental rights are violated by the state - in Ambedkar"s words it constituted the heart and soul of the constitution.

The original unaltered fundamental rights which are involved in the issue of reservation are stated below in a chronological order:

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

Article 15(1): "The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them"

Article 15(2): "equal access to public facilities"

Article 15(3) : "Nothing in the article shall prevent the State from making any special provision for women and children"

Article 16(1) : There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state"

Article 16(2) No citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, resident or any of them be ineligible for or discriminated against in any respect of any employment or office under the State.

Article 16(4) "Nothing in this article shall prevent the State from making any provision for the reservation of posts in favour of any backward class of citizens, which in the opinion of state is not adequately represented in the services under the state"

Article 29[2]: No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of the State funds on ground only of religion, race, caste, language, or any of them.

To sum up we find that the constitution provides for

A. Fundamental right which guarantees equality

B. No reference to caste in a manner of positive discrimination, instead caste was negatively mentioned in the matter of prohibiting discrimination [4]

C. Equality of opportunity, not equality of outcomes : equal opportunities can be provided only through quality primary and secondary education which may also include special coaching for any inadequately represented population groups but unfortunately the state in India is actively pursuing an antithetical policy of reserve discrimination by crusading for "equality of outcomes" which is ensured by waving aside merit and reserving a disproportionately large number of seats for SC/ST/OBCs/MBCs to allow a mathematical certainty of selection from such castes only. [Despite that many seats remain vacant especially in pure science and humanity based courses]

D. Adequate representation is nowhere referred in the constitution as caste proportionate reservation, especially since reference is to a backward class of citizens. To claim that reservation of backwards should be proportionate to their population, is a case of reductio ad absurdum since the criteria for backwardness itself has been understood as under-representation. The moment you allow for population proportionate reservation [as has been the norm for SC/STs and now OBCs] the validity of inadequate or under-representation should automatically become untenable. Also, the term backward class should logically also apply to the socio-economically backward amongst the so called "upper castes"

E. The constitution does not provide for any scheme of reservation which may even remotely affect the efficiency in administration as is made explicit by Article 335 which reads "The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a state" [the emphasis is mine]

The cynical response of pro reservationists and progressives that efficiency in IAS is always absent is unacceptable since by far it is lacking in logic and empirical evidence.

F. Article 16(4) of the constitution is an exception to article 16(2), and could not be allowed to overhaul 16(2) itself.

Amending the constitution: the role of congress and communists

Article 368 of the constitution gives the legislature, the power to amend the constitution. However, the Indian constitution also has the provision of judicial review according to which the SC has the power to strike down any law as invalid or ultra vires which it feels violates the constitution.

The Nehruvian congress regime under inspiration from the communist USSR unleashed a policy of land reforms. The aggrieved party approached the court, because their fundament right to property (now annulled vide 44th amendment act) had been violated. The Congress government shielded itself from the judiciary by placing the laws within the 9th schedule of the constitution making it impervious to judicial review. However, article 13(2) of the Indian constitution explicitly prohibits the legislature to enact any law which contravenes Part III of the constitution which enshrines the fundamental rights of citizens. Yet, most inexplicably the SC in cases of Shankari Prasad, 1952 and Sanjay Singh, 1955 ruled that the government has the right to abridge fundamental right of citizens vide article 368.

The eminent constitutional expert, D D Basu reflects that under the Congress rule for 30 years, the ambit of the Fundamental Rights embodied in Part III of the original constitution had been circumscribed by multiple amendments[5]

But in the most radical judgment till date; in case of Golaknath Vs State of Punjab, Justice Subba Rao considered the fundamental rights to be unalterable since they enjoyed a transcendental and sacrosanct status in the constitution. Article 13 according to the majority view expressed the limitations of the power of the parliament and hence the legislature could not modify, restrict or impair any of the fundamental rights.

Regrettably, the dictator in Indira Gandhi had other ideas and in company with the communists declared a war on the constitution. The communist A K Gopalan even demanded that the constitution be done away with lock, stock and barrel. [6] Indira Gandhi"s totalitarian government passed the 24th amendment act which restored the right of the parliament to curb fundamental rights.

The SC court by now decided in the pathbreaking Keshavananda Bharati case, that while the legislature had the right to pass amendments which restricted fundamental rights, they had to be made consistent with the basic structure of the constitution which could be verified only by the judiciary. The Basic structure was declared as an axiom, and until date the SC has not made explicit as to the meaning and understanding of basic structure.

Indira Gandhi"s atrocities continued unabated as she even suppressed the right to life of an individual and the SC in its hour of shame concurred except for the defiant voice of Justice Hans Raj Khanna who resisted the pressure to concur with the majority view

D D Basu reminds us that "History has proved that a group of human beings constituting for the time being, the majority of a legislative body are not always infallible and that is why the constitutional safeguards are necessary to permanently protect the individual from legislative tyranny." [7]

Reservation is ultimately based on directive principles only, not fundamental rights

Fundamental rights are legally enforceable and guaranteed rights but directive principles are not enforceable in any court of law. But under article 31-C, a DP may be framed as law even if it abridges fundamental rights. Indira Gandhi"s draconian 42nd amendment act allowed DPs to usurp FPs. But, in the Minerva Mills Case the SC repudiated the clause considering it would alter the basic structure of the constitution and advised that both FPs and DPs need to be read harmoniously as both complement and supplement each other. One of the directive principles in Article 46 reads that "The state shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the SC and ST." This very much denounces the claim of reservation mongers that reservation is sanctioned as their constitutional right. The article in question only allows promotion of education, and nowhere refers to reservation of seats in educational institutions as means for the same. If we are to read fundamental rights and directive principle in article 46 harmoniously, then emphasis has to be solely on primary and secondary education as they are both crucial to sustaining the spirit of the constitution unlike reservation in higher institutions which would automatically bring the relevant FPs and DP in article 46 into conflict with each other. The meager GDP allocation to education is being usurped by the creamy layer of reservation beneficiaries which is inexorably eating into mass education programs for the downtrodden classes. Moreover, the article does not support a purely caste based worldview; any weaker section of the population is entitled to special educational consideration from the government irrespective of their caste.

Directive principles have been frequently neglected by successive governments since it is not a commitment. Article 44 of the constitution advocates the promotion of a uniform civil code amongst citizens. Article 48 expects anti cow slaughter measures to be in place. The irony of the fact is those parties who oppose these directive principles are deemed secular, and any party which favours implementation of both these directive principles is branded communal!

How a recalcitrant constitution was made to conform to reservation [8]

In Madras, in 1951, a student not belonging to SC/ST community was denied admission despite securing higher marks. Madras HC ruled that article 46, a directive principle overrode that of article 29(2). The SC over-ruled the Madras HC decision and stated that directive principles cannot over-ride fundamental rights. So, the first amendment to the constitution was done; adding clause 15(4) which spelt out "Nothing in this article or 29(2) shall prevented the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for SC and STs"

In Indra Sawhney Vs Union of India [a.k.a. The Mandal Commission case] the SC adjudged that "The creamy layer in the backward class is to be treated "on par" with the forward classes and is not entitled to benefits of reservation. If the creamy layer is not excluded there will be discrimination and violation of articles 14 and 16(1) in as much as equals (forwards and creamy layer of backward classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of articles 14, 16(1) and 16(4) since unequal"s (creamy layer) cannot be treated as equals is to say, equal to the rest of the Backward class."Despite the court"s ruling it is unfortunate that such a scheme for exclusion of creamy layer beneficiaries has not been extended to SC/ST reservations. Also, the creamy layer ceiling has been set so high [4 lakhs according to new census which is not the income of even 4% of Indians] by the government that it practically erodes the essence of the ruling itself.

Again in Indra Sawhney, the SC had held that reservation could be provided only at the time of entry to a service. Any attempt to infuse reservation in promotions would impair the efficiency of administration and would therefore fall afoul of article 335. To circumvent the court order, an all party meeting was conjured to ratify the 77th Amendment which added Clause 4(A) to article 16 which read "Nothing in this article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the state in favour of SC/STs..."

Slowly but surely, article 16(4), an exception and alteration was allowed to swallow the rule of article 16(2) [which prohibits discrimination] itself

In Indra Sawhney the court had reaffirmed that total quantum of reservations including ones carried forward from preceding years cannot exceed 50%; so the 81st amendment was ratified to counter the ruling.

When SC struck down the reservation scheme for consequential seniority in Union of India Vs Virpal Singh Chauhan, the 85th amendment was invented which read "Nothing in this article shall prevent the state from making any provision for reservation in manner of promotion with consequential seniority to any class or classes of posts"

The SC had cautioned the legislature from framing any law which compromised with efficiency to so large an extent that it violated the provisions of article 335 itself especially since our constitution framers were all first class merit mongers! Yet again, the constitution in the hands of nefarious and unscrupulous politicians was violated through an all party conspiracy while framed the 82nd amendment act in 2000 which audaciously dictated "that nothing in this article shall prevent in making of any provision in favour of the members of the SC and ST for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation of matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or a state." Is this not constitutional fraud? Does it not subvert the basic structure of the constitution? Especially since in Dr. Preeti Srivastava Vs State of MP, 1999 the court had ruled that Article 15(4), envisages the policy of protective discrimination but it should be reasonable and consistent with ultimate public interest i.e. national interest and the interest of the community or society as a whole. But the SC not surprisingly upheld the validity of all these acts in the M Nagaraj case on the ground that these amendments are enabling in nature but asked the state to collect quantifiable data to prove that none of the articles in question including 335 were being violated! This meant the government till date is proceeding in an empirical vacuum while dogmatically crusading for quota.

This brings us to the pivotal question as to how could reservation stand for national interest when it compromises with quality and standards of excellence. Professionals in any field / IAS officers do not work exclusively for any caste or community but for the entire society. Any deficiency in them would hurt the entire framework of society especially those languishing at the bottom of the pyramid; those very countrymen of ours in whose name reservations are sought by politicians. To instantiate, even a dalit patient seeks services from the most competent and excellent of doctors, the latter"s caste does not count, it"s immaterial! It is not the government or state which suffers due to subversion of merit; the sufferer is the common man and the society at large! No pro-reservationist ever speaks for efficiency and the associated debilitating effects on society"s downtrodden because of its downfall since they know doing so would land their cherished but highly sophistical theory of distributive social justice into contretemps.

Arjun Singh introduced the 93rd amendment act which adds a new clause - Clause 5 - to Article 15. This enables the enactment of laws, making special provisions for the socially and educationally backward classes, the Scheduled Castes and the Scheduled Tribes in educational institutions including private educational institutions, except in minority institutions. [the emphasis is mine] The anti-democratic and pseudosecular nature of the act can be perceived from the fact that minority institutions are insulated from its purview which proves its communal orientation. Secondly, private institutions if operated by any upper caste group like the Brahmins who constitute the minority in several states like J&k, Maharashtra and UP will become subject to government"s reservation policies which is double discrimination. Technically, Brahmins and all upper caste members being minorities should be guaranteed protection to their institutions under article 29 of the constitution [contrary to popular imagination article 29 does not consider religion as a valid parameter for defining minorities in the said act]

Even the 50% reservation cap set by the SC has been breached in Tamil Nadu, where 69% reservation is currently in operation. This was made possible by pushing the reservation laws within the ambit of the 9th schedule of the condition which was not subject to judicial review. However, in a welcome ruling the SC in 2007 ruled that laws in the ninth schedule after April 24, 1973, providing immunity from legal challenges are subject to scrutiny of courts if they violated fundamental rights. Immediately, a panicky TN government under M Karunanidhi of the DMK declared its vilest intention to rewrite the constitution itself and do away with the over-riding powers of the SC. [9] The moral bankruptcy of these fascists is evident in their diabolical death threats to the constitution and sustained throttling of democracy only in order for their retrograde and anachronistic anti Brahmin policies to succeed. It also makes a mockery of pro reservationists who champion the constitution as basis for reservation.

The reservation nightmare is yet to come to a standstill. Manmohan Singh, India"s dummy PM had already made his intentions clear in enforcing reservation in the private sector believing it was an idea whose time had come. [10]

The Madras HC court had overthrown a UPSC ruling which disallowed dual reservation. According to the UPSC rules, any SC/ST/OBC candidate who makes it via merit to the list of selected candidates can avail of his reservation benefit and avail of better service - like opt for IAS, when his combined rank is only good enough for getting IRS. However, the IRS seat vacated was to be passed to a general category candidate. But according to the HC this was detrimental to the interests of the quota candidate. No consideration was shown towards the general category candidates who despite greater merit have been reduced to a minority in the services and which may be the reason why the IAS has been reduced to breeding grounds for nepotism and corruption which is against the interest of the entire society, especially the downtrodden dalits. Although, the SC under Justice Thakker"s ruling has temporarily halted the Madras HC order, one wonders how long the dykes will hold against "progressive judges" and politicians.

In summing up, we may conclude that there was originally nothing in the constitution which favoured reservation as a SC/ST/OBC birthright. Reservation was not viewed by the constitution framers as a panacea for the socio-eco inequalities prevailing in our society. Instead, they viewed it suspiciously and were constantly aware of the dangers of its incessant perpetuation. To infer the original Indian constitution advocating unlimited caste based reservation is not by any means an absolute objective exercise and even the exceptional directive of 16(4) cannot be seen in isolation of the fact that maintenance of merit was paramount, and any policy of reservation was hence subject to maintaining standards of efficiency in administration and for that the onus was on the state. Regrettably, the constitution was corrupted to conform to petty political agendas. We may remember how through the 42nd amendment act; the state was defined as socialist (as also secular) although the constitution does not commit the country to any particular form of economic structure. The same Congress I government in 1991 adopted privatization. This means that every Indian who takes oath in allegiance to constitution start the very first day of their careers by breaching their oath. [11]

Reservation is the bane of the nation and should be challenged by every thinking Indian. And those who can"t should stop their sanctimonious sermons in alleging the current reservation scheme to be the choice of the framers of the constitution - for nothing could be a greater sacrilege to their character and sacrifice!


Saurav Basu

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References & Notes:

1. Swami Vivekananda had astutely observed in the twilight of the 19th century that caste was disappearing fast with the introduction of modern competition. "No religion is now necessary to kill it (caste). The BrĂ¢hmana shopkeeper, shoemaker, and wine-distiller are common in Northern India. And why? Because of competition."

2. http://www.rediff.com/freedom/22patel.htm

3. Introduction to constitution of India, Brij Kishore Sharma, Prentice Hall of India, Page 61, 4E,

4. See a detailed conclusion in Falling over backwards, Arun Shourie, Rupa, 2005

5. Introduction to the constitution of India, D D Basu, Wadhwa, 19E, Page 81

6. Working a Democratic Constitution - The Indian Experience, Granville Austin, Oxford University Press, New Delhi, 1999, p. 235.

7. See citation 5, Page 84

8. Falling over backwards, Arun Shourie, Rupa, 2005

9. TOI 23.1.2007 http://timesofindia.indiatimes.com/articleshow/1388075.cms

10. Die is cast for corporate India http://www.atimes.com/atimes/South_Asia/HD29Df04.html

11. See Citation 3, Page 44-5




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