Civil Procedure Code (CPC)

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Key Takeaways

  • Reservation in India refers to the practice of providing certain groups of people access to government employment, educational institutions, and even legislatures while denying some, to provide opportunities to the oppressed.
  • India’s long-standing caste system is to blame for the country’s reservation system’s inception.
  • The reservation might be viewed as positive discrimination because it is based on quotas.
  • Meritocracy should not be tainted by lowering entrance barriers; rather, it should be bolstered by providing financial assistance to the poor.
  • The article discusses reservation in India and the policies similar to reservation in India though other countries do not have reservation as such.

Introduction

In India, caste has always existed and that too in a harsh way, to be sure. Though it has lessened in public life as a result of laws such as the Harijan Act, it is still very much present in private life. Instead of reading about a Dalit being beaten up for riding a horse in the local paper, take a look at the trolling of Dalit symbols on social media.
Several districts of British India had quota systems that favoured specific castes and communities prior to Independence. Positive discrimination in various kinds had been demanded. The first Justice Party Government approved the first Communal Government Order on September 16, 1921, making it the first elected body in Indian legislative history to legislate reservations, which have since been the norm throughout the country.

The Government of India Act of 1909 included features of reservation, and there were other more policies in existence before Independence. An important one arose from the Round Table Conference in June 1932, when Britain’s Prime Minister, Ramsay McDonald, proposed the Communal Award, under which Muslims, Sikhs, Indian Christians, Anglo-Indians, and Europeans would be represented separately.
The oppressed classes, essentially equivalent to the STs and SCs, were allotted a number of seats to be filled by election from constituencies in which only they could vote, though they may vote in other seats as well. The idea was divisive: Mahatma Gandhi fasted in protest, while many members of the lower castes, including B. R. Ambedkar. After months of talks, Gandhi and Ambedkar agreed to create a unified Hindu electorate with seats designated for Dalits. Other religions' electorates, such as Islam and Sikhism, remained separate.

Our Constitution’s preamble boasts of social, economic, and political justice, enshrining equality of status and opportunity, but does such equality exist?

Reservation in India

A vacancy reserved for SCs, STs, or OBCs, as the case may be, cannot be filled by anyone other than a SC, ST, or OBC candidate.
As seen in the table above, nearly 60% of seats in government positions and higher education institutions in India are reserved for various categories such as ST, SC, OBC, and EWS. In addition, 3% of seats are set aside for people with disabilities in all categories. This means that just 40% of seats are available on a merit basis. Candidates from all other categories, including SC, ST, OBC, and EWS, are eligible to vie for merit seats.

The original Indian Constitution only provided for quotas in legislatures, and only for a period of ten years until 1960 (Article 334). Following modifications to the Constitution, the duration of quota reservation in legislatures was extended.

Later, constitutional amendments established provisions for reservations in educational institutions and government jobs. The validity of the reservations provided in Articles 15 (4) and 16 is not specified. SC and ST were the only reservations made at first. In 1991, OBCs were added to the reservation list [Article 15 (5)]. Economically Weaker Sections are now included in 2019 [Articles 15 (6) and 16 (6)].

The two main goals of providing reservation under the Indian Constitution are:

  • Advancement of Scheduled Castes (SC) and Scheduled Tribes (ST) or any socially and educationally backward classes of citizens (e.g: OBC) or economically weaker sections (EWS) – Articles 15 (4), 15 (5), and 15 (6).
  • Adequate representation of any backward class of citizens or economically weaker sections (EWS) in state services - Articles 16 (4) and 16 (5) (6). Prior to 2019, reservations were made primarily on the basis of social and educational disadvantage (caste).

The case of State of Madras v. Smt.Champakam Dorairajan was the Supreme Court's first major ruling on the topic of reservation. The lawsuit resulted in the First Amendment to the United States Constitution. While Article 16 (4) of the Constitution provides for reservations in favour of the underprivileged in government employment, no similar provision exists in Article 15.

The Court looked at the breadth and extent of Article 16 in the case of Indra Sawhney v. Union of India. According to the Court, the creamy layer of OBCs should be eliminated from the list of reservation beneficiaries, reservations should not be made in promotions, and the total reserved quota should not exceed 50%.

Need for Reservation

The caste system was deeply entrenched at the time of Independence. Lower castes had poor social, economic, and educational status, and social evils such as untouchability and caste-based discrimination were common. The entire country was in turmoil and misery, but the backward community was in worse shape. These communities had to fight not just poverty and a lack of basic necessities, but also societal inequalities, oppression, and biases held by the general public. Affirmative action was required to teach social justice, give equality of opportunity and position, and solve the issue of proper representation of these poor classes. As a result, the reservation was established for a ten-year period, although it is still grappling with the stigma of caste discrimination.

  • In 2007, the Thorat Committee report revealed the horrors of caste prejudice experienced at every level, not just by students but even by the few SC and ST faculty members at AIIMS, which is regarded one of the country's best educational institutions.
  • According to a poll conducted below the poverty line, SCs, STs, and OBCs account for half of India's poor destitute households.
  • Untouchability still reigns supreme.
  • We have a law that prohibits untouchability, but society must still adapt to it.
  • Manual scavenging is still a stigma that has to be addressed.
  • There has been no specific action taken in the case of manual scavengers, and there is no proper legislation in place.
  • Marriages between people of different castes are extremely uncommon. Inter-caste marriages account for just 5% of all weddings in India.

There is a lot of violence directed at the underprivileged. According to several reports, criminality against Dalits is on the rise. To combat this social stigma, special provisions and affirmative actions are required. While the usefulness and necessity of reservations as an affirmative action can be debated, we must all agree that affirmative actions are required.

Reservation Policy Abroad

Reservations aren’t just a thing in India. Reservation systems occur in Nepal, Pakistan, Bangladesh, and Sri Lanka, to name a few. However, while quotas are uncommon in countries, affirmative action is in use all across the world.

  • United States has the policy of Affirmative action.
  • Brazil has the Vestibular policy.
  • The Equality Act 2010 was passed in the United Kingdom.
  • Japan has policies in place to assist the Burakumin, who are considered as Japan’s outcasts.
  • Employment equity (Canada) impacts aboriginals and minorities in Canada.
  • Women and ethnic minorities are given priority in China.
  • Quotas for Swedish speakers exist in Finland.
  • Germany’s Gymnasium system has quotas.
  • Israel implements affirmative action policies.
  • Albanians have quotas in Macedonia.
  • Malaysia has a new economic policy called the Malaysian New Economic Policy.
  • Affirmative action is in place in New Zealand for Maoris and Polynesians.
  • Women must make up 40% of the PCL boards in Norway.
  • Romas in Romania are subject to quotas.
  • Employment equity exists in South Africa.
  • South Korea maintains a policy of affirmative action for Chinese and North Korean citizens.
  • Sweden has a broad affirmative action policy.

The Convention on the Elimination of All Forms of Racial Discrimination, which urges nations to take affirmative action for disadvantaged groups, was held at the United Nations in 1969.

Affirmative Action is the name given to the reservation system in the United States. In many places, racially discriminated groups are given additional numbers to ensure equal representation. When compared to the Indian system, this method has a lot of distinctions. In India, Dalit-OBCs make up roughly 70% of the population, but in the United States, they make up 10% to 12% of the population.

The reservation policy in Bangladesh was scrapped in the government services after a huge protest march by thousands of students against keeping certain jobs for special group of people. The Prime Minister Hasina suggested this abolition as the students did not want the system.
China’s success is owing to its emphasis on merit and a high-quality education system, which has driven it to compete with Western countries and produce world-class intellectual output. In 2016, China fell behind the

United States in terms of the quantity of scholarly papers published, while the quality of the work published was not as high.

China has a merit-based ‘Thousand Talents’ programme to attract top-quality out-of-country academics with world-class amenities and wages. The No Detention System, Mid-Day Meal, Transfer-Posting Corruption, Reservation, Liberal Pass Policy, and Reduced Syllabus RTE, among other things, do not guide China. This has improved China’s human capital and enhanced its technological prowess.

Conclusion

Reservations based only on economic criteria are not a panacea, while family income can be one of the factors to consider. Also, rather than extending the reservation system indefinitely, it's high time that we set a time limit for it.

It is also a crime and injustice to deny India the service of meritorious candidates who see themselves being overtaken by people with inferior academic performance or brilliance. Reforms to India's reservation system are urgently needed. Parties are hesitant to disturb the existing system because the subject of reserve involves a large number of votes.

As a democratic country, we must recognise the need of achieving true social inclusion and equality of position and opportunity. We need to recognise that we can't address problems by thinking the same way we did when we created them.


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