Revitalising India’s reservation system

In News

The Supreme Court verdict determining the validity of the 103rd Constitutional Amendment is likely to come out next week

Rationale behind the Reservation policy in India 

• The original intent of the reservation policy in newly independent India was to level the playing field for the most marginalised sections, those stigmatised and discriminated against on account of their birth into specific caste and tribal groups. 
  • While these groups were also economically deprived, that was not the main rationale for instituting compensatory discrimination in favour of these groups.

About  Reservation system in India

• The jurisprudence of reservation relies on the symbiotic coexistence of constitutionally guaranteed equality of opportunity in public employment under Article 16 (1) of the Constitution of India.
  • It is a settled law that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution, rather they are enabling provisions for providing reservation, if the circumstances warrant.
• The reservation system in India takes two forms: vertical reservation (VR), which until 2019 was defined for stigmatised and marginalised social groups (SCs, STs and OBCs); and horizontal reservation (HR), applicable to cross-cutting categories such as women, people with disability (PWD), domicile, etc. 
  • As long as the VR system was social group-based, no individual was eligible for multiple VR categories, since no individual can belong to multiple caste or tribal groups.
• The 103rd Constitution Amendment Act in 2019, popularly known as the 10% quota for the so-called EWS, fundamentally altered the original raison d’être of reservations by opening VR to groups that are not defined in terms of hereditary social group identity (caste or tribe). 

Emerging Issues 

• EWS status is transient (that individuals can fall into or escape out of), but social groups are permanent markers of identity.

• Amendment violates the basic structure of the Constitution: Exclusion of SCs, STs, OBCs from the scope of EWS reservation was immediately challenged in court on the grounds that it violated individual right to equality (that roughly corresponds to Articles 14-18 of the Indian Constitution).
• Over the decades, the instrument of reservation has expanded to include more groups under its ambit, leading to furious debates both about the general principle of affirmative action and about which groups deserve to be beneficiaries. 
  • These disputes have resulted in complex legal cases, with the rulings providing the nuts-and-bolts mechanics that guide the implementation of the reservation policy on the ground.

• In her 2019 paper with economist Rajesh Ramachandran, Deshpande shows that under the current income limit for EWS reservation, more than 98% of the population qualifies, i.e., almost everyone is eligible for EWS reservation.
  • This would effectively end up making the EWS reservation redundant. 

Conclusion and Way Forward 

• The court would be well-advised to consider the implications of the implementation routes and to make sure there are no ambiguities, i.e., no loopholes. 
• Given the enormity of the unemployment situation, as well as the importance of addressing social cleavages, the urgency of working out an optimal implementation strategy cannot be overstated.
• The judiciary needs to note a subtle aspect of EWS reservation in ensuring that there is an optimal implementation strategy