May 6, 2021

Reserved Uncertainty or Deserved Certainty?

Reserved Uncertainty or Deserved Certainty? A Reservation Debate with Predominant Focus on Article 16 (1) & 16(4)

Note: The views are personal to the author.

A flabbergasting fact about reservations is that, In India even exceptions run into millions.

On that very note I’d like to begin the anatomization of the arguments against the topic of reservation with Article 16(1) and 16(4)[1] being the linchpin of our debate.

This temporary and uplifting provision provided by the Indian constitution is a mere hoax and a rib-tickler.

While researching this topic I seemed to have been perplexed due the fact that I see no contemporaneous rationalization of the decisions taken in for affirmation of reservations as they are being treated the same as it would have happened either 50 or 100 years back. Modern problems require modern solutions and reservation is just an easy way out. What happened 100 years back , sure does draw breathe now but the severity isn’t the same. My point being, reservations policies required back then for the ‘upliftment’, doesn’t require the same vivacity.

Well it’s true when they say , India is the only country that fights to be termed backward because reservations were used to eliminate discrimination but it all boils down to the same level and leads to a concept of reverse discrimination and helps in reinforcing a stereotype.

‘The worst form of injustice is pretending justice’ [2] and reservation is yet another hole in wall for the Indian judiciary. There exist several instances within the concept of reservations as well. Pasquinade? I think so , in the case of Jarnail Singh v/s Lacchmi Narain Gupta where the court decided that the state doesn’t require to collect quantifiable data on backwardness and thus deny any request for reservation. A few more instances being :

Devadasan Case :

Where the supreme court was required to adjudge the carry forward rule, rule was explained that if 42 seats were reserved for SC/ST category and in a given year if only 32 seats got filled, the remaining 10 seats would be carried forward to the next year. Now going onto the reasonable classification of the argument this would eventually lead to lesser number of seats for the general and other categories.

Rajasthan Reservation Scheme :

In Rajasthan , earlier the reserved seats were 49% where further division was – 16% for Dalits , 21% for OBC and 12% Adivasis. But after an amendment, the government decided to entertain the idea of an additional 5% reservation for the ‘Special Backward Classes’.

Now my contentions is that, Firstly it manifests beyond the legal ceiling of the 50% decided by the government[3] , secondly it violates precedent case of M.R Balaji v/s State of Mysore thus questioning its legal authenticity.

Article 16(4) – challenging your efficiency because you are a person from the backward class?

The very fact that article 16(4) talks about both employment and promotion is superfluous. For once , the idea of employment seems to be in line with the logic of our forefather’s ideas of reservation but why the promotion ? Now the idea of promotions is debated against with the principle of ‘equality of outcome’. Where is equality here? Now people coming from a category which thrives on to the social stigma doesn’t deprive them of the knowledge. A lack of fluency in English or no knowledge as to working with technologies are all the things that could be learnt. An equal conducive environment is given to both , now who makes the best use of it and learns vicariously is based on their capabilities and their attitude to seize the opportunity. Is that the only reason one should be given a promotion basis that he/she is a Dalit? My caste doesn’t define my capability to learn or ace at a job! One should be promoted basis merit !

In the case of Chebrolu Leela Prasad Rao v/s State of Andhra Pradesh the court held that a 100% job reservation could be given to people of the SC/ST tribe in primarily rural/backward areas. Now here are certain conclusions we reach at which are in violation of , Article 16(1) and 16(4); Sawhney-Thomas Principle; R. Chitralekha v/s State of Mysore [4] & undoubtably is unreasonable and unconstitutional – the two primary rebuttals the government uses to practise reverse discrimination. But the real question is whether the government is more liable to practise ‘reservations’ for the namesake of ‘upliftment’ or ‘backwardness’ where the term ‘intelligible differentia’ doesn’t have dissimilitude at all and is more like a façade to avoid any turmoil in the country.

All these cases lead to me to believe the fact that ,” 100 mein se 99 beiman phir bhi mera bharat mahan”

It’s true when Edmund Burke said “Law and arbitrary power are at eternal enmity” and hence I reach the argument that, No act which is arbitrary and unreasonable can do justice to the judiciary and its outcome. This puts into question the Sawhney- Thomas Principle as the government didn’t mention any numerical cap on the quantum of reservations thus making it more suspicious and arbitrary.

Mala fide power and arbitrariness are different lethal vice emanating from the same vice.

Hence talking about arbitrariness and vulnerability of the law , it doesn’t define the word ‘backwardness’ and ‘efficiency’. When such words which are the primary pillars of any argument for the topic of reservation are left for a wide interpretation , there seems no logicality that exists in the prevalence of law. The word backward and efficiency are very subjective. This argument puts in question the case of M. Nagaraj v/s Union of India because the 3 conditions laid down by the judge, out of which 2 use the word to ‘backwardness’ and ‘efficiency’ and thus makes this yet again, arbitrary! Arbitrariness of an act goes against the fundamentals of article 14 and 16, two articles that are meant to take down the power that might accumulate into the hands of a single person or unit.

The recent 10% addition bill also seems contrary to the law prevailing and henceforth raise similar concerns as above and enshrine the fact that it is a mere election lollipop. An additional argument would be regarding the fact that reservations shouldn’t be done on income factor because reservations isn’t a poverty elevation program and would further add onto the two of the darkest case[5] if they fail to understand this line of difference and pass this bill.

The only solution I deem fit is if equality is abrogated and Article 14 is repealed. People say reservation is a right but it is just an enabling provision by article 16(4) of the Indian Constitution and one must remember that there is no entitlement one should receive over the anguish of another. In the end the question with which I began my paper still seems perplexing– is it reserved certainty or unreserved certainty ?

References

[1] Constitution of India.

[2] Plato.

[3] Indra Sawhney v/s Union of India AIR 1993 SC 477, 1992 Supp 2 SCR 454

[4] 1964 AIR 1823, 1964 SCR (6) 368

[5] Indira Gandhi v. Raj Narain and Minerva Mills v. Union of India.

Author Details: Noor Dewan is a student at OP Jindal Global University.

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