The caste factor
Justice (retd) Dilip Karnik of Bombay High Court dwells on the constitutional aspects of the reservation policy
On August 7, two days before the Maratha Kranti Morcha called bandh across the state, the Bombay High Court admitted a plea on the community’s demand for reservation. It will hear a petition seeking directions to the Maharashtra government and the Maharashtra State Commission for the Backward Classes to come up with a time-bound programme on implementing quota for the Maratha community.
The politically-influential Maratha community, constituting around 30 per cent of the state’s population, has been agitating to press its demand for reservation in jobs and education. The high court has directed the state to file a fresh progress report detailing the commission’s work, by September 10.
With more and more ‘upper’ castes and politically influentially communities demanding reservation, we try to understand the constitution makers’ sentiments in awarding reservation to certain sections of society.
Explaining the term reservation, Justice (retd) Dilip Karnik of Bombay High Court, says, “Under the Presidential Order, reservation was restricted to Scheduled Caste, Scheduled Tribe and Nomadic Tribe. That was the original definition of reservation in the constitution as it was framed in 1950.”
“Reservation,” says Justice Karnik, “is an exception to Fundamental Rights — Article 14, Article 15 and Article 16, which provide ‘Equal Opportunity Before Law,’ ‘Equal Opportunity of Law’, and ‘Equal Opportunity of Employment’ to citizens of India. If you reserve something for a group of people, then other people don’t have an equal opportunity of competing with it. So the principle of reservation is an exception to these Fundamental Rights.”
“Equality of Law means that two persons cannot be treated differently. But if the two have different circumstances — if person A didn’t have access to education, or he didn’t have money, he cannot compete with person B, who has the means. Therefore, treating them equally would be inequality again. That was the principle on which reservation was based,” he adds.
The reservation for Scheduled Caste, Scheduled Tribe and Nomadic Tribes was initially only for 15 years. It was supposed that after 15 years, the lives of one generation will improve; they will get access and exposure to education which was denied to them earlier by caste hierarchy. Once their lives have been improved, it was assumed that they wouldn’t need reservation. “With successive amendments to the constitution by Parliament, the reservation tenure kept getting extended. It was expected that the families, who were given preferences in jobs and education etc, and are on par with other members of society, will not avail of reservation when it comes to their kids. But because the provision is there in the Constitution, the policy of reservation continues,” he adds.
The Supreme Court has ruled that there will be less than 50 per cent reservation quota. For instance, if there are 100 seats available, then only 50 seats can be reserved, not 51. “The law says that only 50 per cent of seats can be reserved. How you distribute those seats within 50 per cent falls in the domain of the legislature,” points out Justice Karnik, adding, “Except for some cases in Tamil Nadu, the Supreme Court judgement is being observed in the rest of the country.”
When asked if he forsees another amendment vis a vis the Maratha quota, Karnik says, “The reservation cannot exceed the 50 per cent. If the existing reservation in Maharashtra is say, 48 per cent, then the community gets only two per cent. If it exceeds more than what the quota entails, it eats into the seats of others.”
Do we see reservation policy being rolled back at any point of time, to which Justice Karnik says, “That’s a very political question. It depends on the political will of the society.”
With inputs from PTI