Reservation In Jobs: A Juggernaut For Society

INTRODUCTION

“There is equality among equals and to equate unequally is to perpetuate inequality”

The policy of reservation has been envisaged by the founding fathers of the Indian constitution primarily for the upliftment and advancement of the weaker section of the society and wholly on the above-said principle. A reservation system is also called an affirmative action i.e. an attempt to bring members of unrepresented groups, usually a group that has suffered discrimination into a high degree of participation in some beneficial program. (1)

CONCEPT OF RESERVATION

A policy of Reservation is

• An exception to the well-accepted principle of EQUALITY i.e. is to say it’s against individual moral rights(human rights).
• Compensatory for those who suffered for centuries for “ no fault of theirs”
• To be given effect in such a manner that should not affect the efficiency of the system
• Eventually for the good of society as a whole; and
• Transitory in nature (2)

Basically, a reservation policy was introduced only in order to make unequal’s equal and offset the inequality and remove manifest imbalance. To get away from the practices of infringement of Human rights of those from backward class and for protection of their rights this concept was introduced in the Indian Political System. Court’s verdict in Indira Sawhney's case was that reservation is the highest form of "Special Provision" while preference, concessions, and exemptions are of the lesser form. There was an ocean of differences between a well-advanced class and a backward class in a race of open competition in the matter of public employment and they were been placed inequally, cannot be measured by the same yardstick. Therefore, in order to make the unequal equal, these constitutional provisions, namely Article 16 has been designed and purposely introduced providing some preferential treatment to the SC/ST/OBC. Hence, remedial action in form of reservation policy was addressed to remove ill- effect stemming from historical discrimination i.e. they have been in the past denied access to government services on account of their inability to compete effectively in the open section on the basis of merit.

Whereas it was held by the Supreme court in Case of Ajit Singh II v. State of Punjab (3) that Article 16(4) and (4A) do not guarantee any fundamental right to reservation as this policy was adopted just to uplift the weaker section of the society and they are just an enabling provisions, visiting discretion in the state to consider providing reservation. A writ of mandamus cannot be issued either to provide for reservation or for its valuation.

Reservation aimed at securing proper representation in the administration to all sections of the society, intelligence and administrative capacity being not a monopoly of any one class, caste or community. The rooted reason behind providing reservation was to make sure that educationally backward classes should not be denied from any mode of earning and from being represented in any section of government into which a literate person can easily get into with his eligibility.

The existence of Article 16(4) (4) in the constitution reflects that this is to provide socio-economic equality to the disadvantaged section of the society . (5)

Upon considering the upliftment of the weaker section of the society, reservation policy was introduced initially for 10 year and it was recommended that if there is any need for further extension then the time period of 10 years can be extended by the legislature, but development of country is restricted by providing reservation in public employment under Article 16, because if a person becomes eligible as there already being provided with reservation in educational institutions under Article 15 (6) and prohibition of discrimination. So there should be a fair competition for the position rather than a person with less eligibility is holding that position and the person who score more and considered more eligible is sitting back because that person belongs to the general category.

To achieve total unity and integration of the nation, reservation in employment are inoperative in the present state of society. (7) Reservation in appointment in favor of any backward class or SC/ST is permitted under Article 16 of the Indian Constitution and so long as the backward class is not adequately represented, reservation should be made. (8) But along with representation eligibility of person representing and holding the post should also be taken into consideration.

In K.C. Vasanth Kumar v. the State of Karnataka, (9) the Supreme Court has suggested that the reservations in favor of backward classes must be based on the means test. It has been further suggested that the policy of reservations should be reviewed every five years or so and if a class has reached up to that level where it does not need a reservation. Its name should be deleted from the list of backward classes. Reservation is the main cause of brain drain.

Recently in the case of Mukesh Kumar and Ors. v. The State of Uttrakhand and Ors. on 7 February 2020 Supreme court held that States are not bound to make a reservation in promotion and there exists no Fundamental Right which inheres such right in any individual. It's wholly the discretion of the State Government to make a reservation in promotion by first presenting the data highlighting the inadequacy of representation of a particular class or community in public services.

AN OTIOSE POLICY

The injustice and denial of one section by others is the outcome of strict social division and prejudice. As a result, a large section of the Indians have been identified as underprivileged, backward, and denied, these problems that vitiate jobs reservation, it would be foolish to see them as the sole policy instrument for fighting employment denial.

The point of policy should actually focus on improving the educational standards of Dalits rather than providing free services via catering reservation to them. Confidence in oneself, through one's interaction with the social environment, is central to the achievement of goals. We may not be able to define confidence accurately, but we know it when we have it and also when we lack it. The root of the problem of poor Dalit achievements lies in the many dysfunctional primary and secondary schools, in the villages and towns of India, characterized by an absence of learning materials, teachers, and, sometimes, even classrooms. It is in these schools that learning is muzzle for millions of children.

Admittedly, tackling the problem at its roots will only harvest results after a long delay. Nor does the emphasis on effective learning at school carry the glamour associated with being a putative graduate of the Indian Institute of Technology, the Indian Institute of Management, or the All-India Medical Institute. But, before the vast mass of educationally and eco nominally deprived children in India (many of whom are Dalits) can meaningfully enter the portals of universities and institutes of higher education they need to go to a good school. (10)

CONCLUSION

Initially, the policy was introduced to lift up the people left behind, but by providing those with a plate full served with food with all desert and dishes which made them unwilling to learn that how those dishes are being prepared and on the other hand if they were being provided with the raw material and being taught how to convert that raw material into an eatable dish will be more beneficial for the individual as well as for the family members too.

[The author, Pratibha Bansal is a final year law student at Banasthali Vidhyapith, Rajasthan]

1. Michal Rosen, Book on Affirmative action and Justice – A Philosophical and Constitutional Enquiry, p.36.
2. Jyotica Pragya Kumar, Policy of reservation: its envisioned perspective, Journal of the Indian Law Institute, Vol. 39, 1997, p. 330.
3. AIR 1999 SC 3471
4. The Constitution of India, 1950, professional book publishers,7
5. State of U.P. v. Dr. Dina Nath Shukla AIR 1997SC. 1095
6. The Constitution of India, 1950, Professional Book Publishers,6.
7. Sujal Atul Munshi v. the State of Gujarat, AIR 1996 Guj 170.
8. Preethi Srivastava v. State of M.P., AIR 1999 SC 2894.
9. AIR 1985 SC 1495
10. Vani Borooah, Social Exclusion and Jobs Reservation in India, University of Ulster,12, https://www.scribd.com/document/.../Social-Exclusion-and-Jobs-Reservation-in-India, (Date:20/7/19, Time: 3:35 pm)