(Sample Material) Gist of Important Articles from IIPA Journal

Topic: Reservation Policy in India: Theory and Practice S.R. Maheshwari

RESERVATION IN THE PUBLIC SERVlCE

Reservation in the public service has a long history in India as it dates back to the colonial period. Reservation of jobs began to be thought of with the beginning of democracy in the twenties. Patronage, as the criterion of public recruitment, gave way to merit as proven through a competitive examination in all the modern nations in the later part of the nineteenth century. In India, merit was adopted as the established basis of public recruitment, thanks to the celebrated Macaulay Report on the Indian Civil Service. Reporting in 1854, the Macaulay Committee said: 'Hitherto the admissions (to the Indian Civil Service) have been given by favour. They are henceforward to be gained by superiority in an intellectual competition’. The Committee opined that the intellectual test was also the best moral test- "early superiority in science and literature generally indicates the existence of some qualities which are securities against vice-industry, self-denial, a taste for pleasures not sensual, a laudable desire of honourable distinction, a still more laudable desire to obtain the approbation of friends and relations”.

The first open competitive examination was held in 1855 to recruit members of the Indian Civil Service; and since then, the public services in India became based on merit. An apparent set-back to this policy came in the wake of the submission of the Report of the Lee Commission on the Superior Civil Services in India (1922-24). At this stage, with the ostensible move of Indianising the public services, the British rulers began to appoint persons belonging to different communities-viewed by many as case of the time honoured tactic of divide and rule. But the secular forces always upheld the cause of merit. The only exception made was for what were then called the depressed castes.

Grounding in Welfare Orientation

The welfare orientation of the nation’s policy-makers in the years immediately following Independence was a legacy of the larger social animations permeating the national freedom movement. When India drafted its Constitution, the social concerns were loud and vivid. Almost in every sphere of governance, the newly emerged nation State engaged itself in developing an interventionist role of social engineering. As a part of this process, policy-makers earmarked a certain percentage of jobs in public institutions for the disadvantaged groups. This policy is variously called as positive discrimination, reverse discrimination, etc.

Here, we need to clarify our understanding of the term ‘discrimination’. Discrimination is defined as different and selective application (or disregard) of rights, laws or organisational policies to potential or actual employees. Reverse discrimination is ‘preferential treatment of individuals or groups who had previously been discriminated against’.

The setting apart of a fixed number of posts in the public services for the members of the SC has been a firm administrative policy in the Central Government since 1943. (There was no reservation for the ST under the Raj). These concessions principally acquired three forms: (i) 8-1/3 per cent of vacancies in the public services were reserved for the members of these castes; (ii) the maximum age limit for recruitment to public service was raised for three years for them; and (iii) the fee prescribed for admission to an examination or selection in connection with recruitment was reduced to one-fourth in their case. This, together with the reservation in promotion fixed since 1968, continues to be the basic framework of concessions allowed to the SC, notwithstanding the variations in the percentages which are determined on the basis of their number in the total population of the country. In 1946, the reservation of 8-1/3 per cent was raised to 12 and a half per cent. In August 1947, when India emerged as a free country, this continued to be the percentage of reservation in case of direct recruitment through an open competition on an all-India basis but the reservation was raised to 16-2/3 per cent in case of recruitment otherwise than by competition. In the case of recruitment to Class III and Class IV posts, normally attracting candidates from a locality or a region, the percentages of reservation were fixed on the basis of the proportion of SC to the population of that state.

Announcement of 1950

In 1950, the Government formally announced its policy on the recruitment of SC & ST in the public bureaucracy. It did not break any new ground but codified the existing reservation percentages affirming, at the same time, that “orders regarding reservation of vacancies in favour of the various communities will not apply to recruitment by promotion which will be continued to be made as heretofore irrespective of communal considerations and on the basis of seniority and/or merit as the case may be”. The resolution observed: “The policy of the Government of India in regard to communal representation in the services immediately before the coming into force of the new Constitution was that in appointments made by open competition 12-1/2 per cent of the vacancies filled by direct recruitment were reserved for candidates belonging to the SC while in regard to posts and services for which recruitment was made otherwise than by competition, the principal communities in the country were given appointments in proportion to their population. Certain reservations were also made for Anglo-Indians in services with which they had special past associations. The Government of India has now reviewed its policy in this regard in the light of the provisions of the Constitution which lays down, inter alia, that with certain exceptions, no discrimination shall be made in the matter of appointments to the Services under the State on grounds of race, religion, caste, etc. The exceptions are that special provision shall be made for SC & ST in all services and for Anglo-Indians in those services in which they had special reservations on August 14, 1947." Except for raising the maximum age by five years, the contents of concessions did not undergo any change until 1970. In that year, the share in public services was increased to 15 per cent in case of direct recruitment made by open competition on all-India basis, but the percentage of 16-2/3 prescribed for the other category of recruitment remained unchanged.

Mention here must be made of certain watchdog functionaries enshrined in the Constitution of India. The Constitution stipulated the appointment of Special Officer for SC&ST. This was provided under Article 338 of the Constitution. In 1990, the Constitution was amended under the Constitution (Sixty-fifth was terminated and in its place a new multi-member body, the National Commission for SC&ST, has been created. Mention also needs to be made of three parliamentary committees set up in 1966, 1971 respectively, to look after the welfare of SC&ST and other Be. This has now become a Standing Committee under the name of Standing Committee of Parliament on Labour and Welfare. A number of voluntary organisations are also operating in this field, the more prominent among them being the Harijan Sewak Sangh, Ramakrishna Mission, Bhartiya Adimjati Sewak Sangh, Bhartiya Samaj etc. In 1995-96, over 330 voluntary organisations received a total grant of Rs 10.83 crore.

Politics of Mandalisation

A word about the composition of the Backward Classes Commission is to be called for here. A Commission of Inquiry is normally appointed when a certain issue has acquired sufficiently wide public importance and the State seeks the considered advice of persons who already possess a level of subject-matter competence and are expected to go deeper into the problem and come out with their considered recommendations. In short, a commission acquires the color and character of an adjudicator organ, which is expected to examine the issues deeply and impartially and then come out with its recommendations. The Government appointed B.P. Mandal as Chairman of the Backward Classes Commission. But he was a politician and himself belonged to a Backward Caste. That he was very wealthy is also true and widely-known. In addition to him, the Commission had four members not many of whom possessed judicial experience and all came from the disadvantaged castes. This kind of composition violates the first and the foremost norm of an inquiry, namely, the principle of objectivity. The one-sided membership of the Mandal Commission produced a Report which became one-sided, being little more than the lobbyists’ report. The Mandal Commission lacked a wider perspective and did not take into account the larger issues, such as the need for an efficient and professional civil service capable of undertaking growingly complex tasks of democracy and development.

Electoral Compulsions Defying Rationality of Reservation for OBCs

Rationality is generally the first casualty in democracy, more so when even commonly used concepts get differently defined. Or, rationality itself depends on how it is perceived and gets interpreted differently. The Janta Government, a hotch-potch coalition, fell in 1979 and the Report though submitted in 1978 was shelved, apparently for eternity. In the nineties, the Congress Party suffered a defeat and a loose coalition under V.P. Singh of the Janta Party came into power. The V.P. Singh Government soon came under the deepest crisis precipitated by the Deputy Prime Minister Devi Lal’s obduracy. To neutralise Devi Lal, V.P. Singh suddenly discovered the long forgotten MandaI Report and announced its acceptance in a bid to kill two birds with one stone, namely, to deflect public attention and to create a new vote bank of BCs for his Janata Party under his leadership. The BCs constitute a sizable component of Indian voters and, if galvanised and welded, are capable of playing the proverbial King maker’s role in the politics. The announcement of 27 per cent reservation for BC was thus an act of real politik.

No political party in India could risk distancing itself from BC (because of its sheer bulk) by ignoring or opposing the dose of hastily announced concessions. All of them were, thus, vying with each other in applauding the additional reservation. Their applause was apparently unending. Yet the announcement came as a proverbial bolt from the blue and intense student agitation immediately flared up engulfing a larger part of India. Seeing their vastly shrunken avenues for public employment as well as admission to educational institutions, the students demanded immediate withdrawal of the reservation concessions.

It may be mentioned that the V.P. Singh announcement virtually opened a hornet’s nest, mostly in the northern states. The Mandal recipe did not create that serious a stir in south India. In fact, the southern states of India, like Tamil Nadu, Kamataka, Kerala, Andhra Pradesh, etc., had already been following the Mandalisation policies though under a different name since 1930s.

Narasimha Rao Government’s Announcement

The succeeding P.V. Narasimha Rao Government announced two changes in the V.P. Singh’s reservation policy for the OBCs. First, within the reservation quota for OBCs, preference was to be given to the candidates from the poorer sections of these classes. Secondly, ten per cent of the public services were to be reserved for the economically backward sections of categories not otherwise covered by the scheme of reservation. The V.P. Singh announcement set in motion a rather reckless rush for additional job concessions for a large number of ascribed groups in the Indian society. The Indian Christians pleaded for job reservation for themselves. So did the Muslims. The Bhartiya Janta Party wanted a quota for women. In short, all political parties were seen vying with each other in competitive radicalism. The quarrel reached the Supreme Court of India, which gave its historic decision on reservation on November 16, 1992. It upheld the 27 per cent reservation of jobs for the newly empowered category, namely, the BC—or, to use the official language, ‘socially and economically BC’ (SEBCs) or OBCs.

At the same time, the Supreme Court of India gave certain directions. First, all reservations, including those for SC & ST and socially and economically BC, must not exceed 50 per cent within a grade, cadre or service in any year. Secondly, reservation could not be made on the basis of economic criteria alone: social backwardness is explicitly recognised in Article 16 (4) of the Constitution. In other words, caste can be and is the determinant of social class. Thirdly, the reservation is limited to initial recruitment and must not cover promotion. Fourthly, reservation benefit is to be extended to BCs in all religions of the country. Most importantly, the benefits of reservation must be denied to what has come to be known as the creamy layers of the BC (read castes): those among the BCs who are already wealthy must be excluded from the list of beneficiaries. To identify the creamy layers, an expert committee should be appointed.

Supreme Court Ruling

As directed by the Supreme Court, the Government of India appointed on February 22, 1993 a four-member committee called “Expert Committee For Specifying the Criteria for Identification of Socially Advanced Persons Among the Socially and Educationally BC” under the chairmanship of Justice Ram Nandan Prasad. The Creamy Layers Committee submitted its eleven-page Report on March 10, 1993 in which it recommended exclusion of the following categories of persons from the list of beneficiaries:

1. Children of the President, Vice-President, Judges of the Supreme Court and High Courts, Chairman/Members of the Union Public Service Commission and State Public Service Commission, Chief Election Commissioner, Comptroller and Auditor-General of India and persons holding constitutional positions of like nature. (Surprisingly, the constitutional posts of governor, minister and members of legislatures are not excluded)
2. If either of the spouses is a Group A (that is, old Class I) officer, their children will be excluded from the reservation benefits.
3. If both spouses are from Group B (that is, old Class II), their children will attract exclusion provisions.
4. In case of employment in public sector undertakings, banks, insurance organisations, universities and other private employment with a comparable rank, similar treatment is to be accorded to their children as is the case with Group A and B employees.
5. The exclusion rule is to apply at the level of Colonel and above rank in the army and to equivalent posts in the navy and air force.
6. Similarly, children of professionals such as medical doctors, lawyers, chartered accountants, income-tax consultants, financial or management consultants, architects, etc., should remain excluded.
7. In case of agricultural land-holding, children of those holding land above a particular size should also be kept out of the benefits.

These recommendations were adopted by the Government, and the first recruitment for reserved quota for BC was made in 1994. The controversy about reservation, however, did not end. Tamil Nadu under the AIADMK was not reconciled to the fifty per cent ceiling on reservation and instead demanded 69 per cent reservation-a stand it has been taking for some time. The Government of India relented, and obliged Tamil Nadu by passing what is known as the Eighty fifth Amendment to the Constitution in August 1994 and what is more by placing it in the Ninth Schedule of the Constitution, thus repulsing the armoury of judicial review. Reservation of job for BC has indeed opened the Pandora’s box and there is a thoughtless competition for including more and more castes in the list of BC. The Ninth Schedule of the Constitution is also becoming luring as items placed in are not subject to judicial review.

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