By Jhalak Nandwani, Gujarat National Law University, Gandhinagar.

Indian Constitution gives us the right of equality, and the freedom to exercise this right. However, in today’s time, one of the major hindrances to this equality is the Reservation System. This reservation system was worked on, at the time of the drafting of our Constitution, and it was decided that the system will be followed for an initial period of 10 years, to help the backward classes and provide them with adequate opportunities for their development in all spheres of life. But several extensions of this 10 year period have since been made, and the reservation system is still in existence!

The policy of reservations was designed with the intention to provide benefits to the backward sections of the Indian Society. But the flaws that came along with the reservation system are three-fold. Firstly, many undeserving people have derived substantial benefits while the deserving have remained without any aid. Secondly, several politicians have made reservations for the backward people who can help them build their Vote Bank and help them to win elections. Thirdly, caste passions are aroused every now and then by self-seeking people, for their ulterior ends.

Equality is well defined under Article 14 of the Indian Constitution which talks about equality before law and equal protection of laws. It ensures that every citizen shall be likewise protected by the laws of the country and also prohibits discrimination on the basis of gender, caste, creed, religion or the place of birth. Equality before law means that all are equal in the eyes of the law and no one is above the law. There should be no discrimination between two people and all should be treated equally, irrespective of the place of their birth, gender, religion, race, caste, wealth, social status, etc. The phrase “equal protection of laws” means that people in similar circumstances should be treated equally and those who are not equally circumstanced should not be treated equally.

The picture below clearly expresses the difference between the two. The left side of the picture indicates equality before law where all, irrespective of any differences or situations, are treated equally. Even though all the three boys differ in their heights, they are treated equally. It does not see to the individual needs. Whereas, the picture on the right signifies equal protection of laws where all are not treated equally, but are treated as per their situation. Here, the three boys are treated as per their situation. The boy who required more privileges, is provided with the same, to bring them all at equal footing. Thus, equal protection under law is what we should aim at. Reservations should be made in such a manner that differently circumstanced people are brought on equal footing.

Article 15 of the Constitution talks about prohibition of discrimination by the State on the grounds of religion, race, caste, sex or place of birth. But at the same time, it also allows the State to make special provisions for women, children, socially and educationally backward classes or scheduled castes and scheduled tribes. Article 15 basically enlarges the scope to provide for a platform for the application of Article 14.  If the State sets up some institutions exclusively for women or reserves some places of public entertainment and public conveyance for women, it won’t be violative of Article 15. On one hand, this Article prohibits discrimination between citizens on any ground and on the other hand, allows the State to make special provisions for certain groups of people. Isn’t it contradicting in itself?

Article 16 discusses about equality of opportunity to all citizens in matters of public employment. This Article also allows for reservations to be made, for  posts or appointments for backward classes and for those who are not adequately represented. Article 16 is an instance of the application of the general rule of equality before law, as laid down in Article 14 and of the prohibition of discrimination as in Article 15, with respect to the opportunity for employment or appointment to any office under the State. The existing reservation in State Employment under Article 16(4) is in favour of such backward classes, which, in the opinion of the State, are not adequately represented. It is clear from this provision that it is to give classes adequate representation and not individuals belonging to various classes, who might actually be the ones who are not adequately represented.

In Shamsher Singh v. State of Punjab (AIR 1974 SC 2192), the government came up with a Rule granting special allowance to women Principals working under the wing of Punjab Educational Services. This Rule was challenged on the ground that male Principals were not given the same benefit,s although both performed the same duties. Article 16(2) of the Constitution talks about  various prohibited grounds of discrimination,  in matters of public employment; one of those grounds for discrimination is Sex and the same was found to be the ground of contention in the present case.  On the one hand, Article 16(2) of the Constitution empowers the State to make provisions for OBCs and for those who are not adequately represented in the government services. On the other hand, Article 15(3) empowers the State to make special provisions for women and children. Thus, there is a conflict between Article 15(3) and 16(2). The High Court of Delhi held in this case that Article 15(3) prevails over Article 16(2) and so, the government can make special provisions for women.

There was another case wherein there was conflict between Article 15(3) and 16(2): Walter Alferd Baid, Sister Tutor Iewin Hospital v. Union of India (AIR 1976 Delhi 302). The issue here was that the male candidates were ineligible for the post of senior tutor in a Nursing School. The male candidates challenged the constitutional validity of Article 16(2) in accordance with this rule, on the grounds that they were not given same benefits although they performed identical duties. Reservation of posts or appointments for backward classes is permissible under Article 16(2), but not for women. So no reservation can be made as it would amount to discrimination on the basis of sex in public employment, which is violative of Article 16(2).  It was held by Delhi High Court that this rule violates Article 16(2) and was not saved by Article 15(3), which allows state to make special provisions for women.

In both the cases discussed above, one allows for reservations being made on the basis of sex while the other does not. Also, these two situations fail to look into the intention behind the laws, which could be to help women by the means of reservation. It could also be possible that women, for whom such rules are made, do not actually need this reservation and are already adequately represented. Hence, the essence behind these reservations is lost. Reservations should be made on the basis of needs and the individual’s situation and not on the basis of any caste, class or gender.

The reason for contradictions in the reservation system can be attributed to the existence of a creamy layer. Creamy layer refers to the people belonging to “Other Backward Castes” who are financially well-off. When it comes to Scheduled Castes, the Court has not expressed any opinion but there appears no constitutional obstruction in excluding them from the benefit of Articles 15 and 16. The Supreme Court, in the Mandal Commission Case [1992 Supp(3) SCC 217] ruled against the same. The Court directed the removal of socially and economically advanced sections of OBCs  and also said that reservations should be used in a limited sense, otherwise it would perpetuate casteism in the Country.

The system of reservation that exists presently, is in favour of classes and not individuals. There is no particular class in our Country, which is economically backward; all classes and social groups consist of economically backward individuals.

What is needed is that the poor from varied groups should be entitled to reservation and not the entire social group or any particular caste. Basically, individuals should be provided with reservation on the basis of their economic status, irrespective of their class, caste or the social group they belong to. By this, even general category individuals, who are economically backward, and remain deprived of any benefits due to caste-based reservation or have not been adequately represented, can be entitled to such benefits. It is un-Constitutional to keep them confined to any particular social group or groups.