Reservation System In India : Derivatives And Rationality

Anurag Goyal, Advocate
P/314/1997, Chamber No. 73
Punjab and Haryana High Court, Chandigarh

Date : 19/03/2024 Location : Kothi No. 268, Amravati Enclave, Panchkula
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Reservation System In India : Derivatives And Rationality

Dr. Annie Beasant had said, "The political ills of India were directly traceable to her treatment of the so-called depressed classes."

Dr. B.R. Ambedkar writes: "Slavery, it must be admitted, is not a free social order. But can untouchability be described as a free social order? The Hindus who came forward to defend untouchability no doubt claim that it is. They, however, forget that there are differences between untouchability and slavery, which makes untouchability a worse type of an un-free social order. Slavery was never obligatory. But untouchability is obligatory. A person is permitted to hold another as his slave. There is no compulsion on him if he does not want to. But an untouchable has no option. Once he is born an Untouchable, he is subject to all the disabilities of an Untouchable. The law of slavery permitted emancipation. Once a slave always a slave was not the fate of the slave. In untouchability, there is no escape. Once an Untouchable always an Untouchable. The other difference is that untouchability is an indirect form of slavery and, therefore, the worst form of slavery. A deprivation of a man's freedom in an open and direct way is a preferable form of enslavement. It makes the slave conscious of his enslavement and to become conscious of slavery is the first and most important step in the battle for freedom. But if a man is deprived of his liberty indirectly he has no consciousness of his enslavement. Untouchability is an indirect form of slavery. To tell an Untouchable `You are free, you are a citizen, you have all the rights of a citizen', and to tighten the rope in such a way as to leave him no opportunity to realize the ideal is a cruel deception. It is enslavement. It is slavery though it is untouchability. It is real though it is indirect. It is enduring because it is unconscious. Of the two orders, untouchability is beyond doubt the worse."

Justice V.R. Krishna Iyer has very appropriately described the present plight of the Scheduled Castes in the following words: "Even today discrimination against the Scheduled Castes and practice of untouchability persist though' only in certain parts of the country. Even today, serfdom and bonded labor implicating Dalit families continues. All the laws and constitutional prescriptions notwithstanding, enforcement is a flop, a fraud. Investigation into offenses against the Scheduled Castes and Tribes is often done by hostile policemen. Gang rapes of these backward women rarely reach the court and if they do they hardly survive to end in conviction. The truth is that neither the police nor the courts have any emotional involvement or sufficient social commitment where, on the one side, is the feudal order and, on the other side, is the Dalit brother or sister. What is of moment and account for the law's betrayal is the implicit hostility of the dominant classes to legislative measures which are merely skin-deep homage paid to social justice."

In this connection the observations of the Human Rights Watch also very clearly depict the present precarious and deplorable existence of the Dalits in India: "More than one-sixth of India's population, some 160 million people, live a precarious existence, shunned by much of society because of their rank as `untouchables' or Dalits-literally meaning `broken-people' at the bottom of India's caste system. Dalits are discriminated against, denied access to land, forced to work in degrading conditions, and routinely abused at the hands of police and high-caste groups that enjoy the state protection. In what has been called India's apartheid, entire villages in many Indian States remain completely segregated by caste. National legislation and the Constitution serve only to mask the social realities of discrimination and violence faced by those living below pollution line."

UN Human Rights Committee for the Elimination of Racial Discrimination (CERD) after discussing a 35 pages report on racial discrimination, submitted by the Government of India in 2007 after a seven years wait has observed that there is de facto discrimination against the Scheduled Castes and the Scheduled Tribes, who cannot defend themselves, and who are disadvantaged in practice in jobs, in education, affirmative action (despite legislation), election, political participation, compensation, whose lands tend to be appropriated by upper caste neighbours, non-protection by the police of terrible treatment and sexual exploitation of some scheduled castes women at the hands of the upper caste men.

All democratically ruled nations, developed or developing, provide for preferential treatment to the discriminated, segregated and disadvantaged groups of people of their population. In the USA, the UK, Canada and many other countries, racial and ethnic discrimination has been a part of their societies since long. In India, discrimination, oppression, suppression and segregation has been based on the notion of purity at the time of birth in particular castes and communities which are traditionally considered as low. In all these countries, preferential treatment or affirmative action or reservation, in whatever name called, has been adopted as a temporary measure but it is continued because the `level playing-field' for the targeted groups is yet to be achieved. The number of targeted groups of people is also increasing in almost all these countries and India is not an exception to it.

Reservation has been there in India since the advent of Aryans and Manu smriti is an evidence in support of reservation of powers and privileges for three upper castes (Varnas) who have controlled every centre of power in this country from time immemorial resulting into deprivation of the Shudra castes and non-caste untouchables and Adivasis of everything, in fact, mere existence as human beings.

The three upper castes, viz. Brahmin, Kshatriya and Vaishya constitute roughly 15 per cent of India's population; have ruled the country for three thousand years. About 50 per cent are the toiling masses of the Shudra castes and around one fourth of the population is that of the casteless untouchables and Adivasis on whom all sorts of disabilities were imposed. For centuries, the Indian social system has perpetrated social and economic injustices on the lower castes that have been meted treatment worse than animals. In fact, several animals are worshipped, on the other hand, around 1/4th population of the Indian sub-continent were not even allowed basic human rights.

It is against this background, the founding fathers of our Constitution reached on the conclusion that there was a dire need for providing provisions in the Constitution itself to safeguard, protect and uphold the interests of Dalits, Adivasis and other Backwards to elevate them to the level of the so called upper castes. The Constitution of India, therefore, firmly and explicitly ventured on the positive discrimination principle with a strong justification to remove the centuries old deprivation and exploitation suffered by these so called low castes.

The total false and uncalled for narrative that the reservation policy has perpetuated social conflicts between the so called upper castes and the so called low castes is misplaced, misconceived, sectarian and caste biased. In fact, the policy of positive discrimination, up to certain extent, has been able to cure the ills of our non-egalitarian society however there are miles and miles to go.

More than seven decades after Independence, the Scheduled Castes,Scheduled Tribes and some of the Backward Classes are still poorer, discriminated against, isolated, economically deprived and educationally backward.They still continue to be suppressed, oppressed and exploited by the so called upper castes. In spite of myriad welfare schemes and programmes including reservation in the government services and education, the progress of their upliftment is at snails' pace and inadequate due to halfhearted implementation of these schemes and programmes by the Suvarna controlled bureaucracy and politics. With the present pace of implementation of these schemes and programmes, it is doubtful that they would be brought to the level of upper castes in all parameters even by the end of this century.

It is an established fact that Baba Saheb Dr. Bhimrao Ambedkar fought relentlessly alone throughout his life, sacrificed his 4 children in the process, for the cause of untouchables and Adivasis and ultimately got the provisions of reservation for the Scheduled Castes and Scheduled Tribes incorporated in the Constitution of India.

Caste system in India has persisted with rigid hierarchies and structured inequalities. The founding fathers of the Constitution were conscious of the fact that this inhuman caste system had been impairing development of the Indian sub-continent as an inclusive modern society and a strong nation as well. Thus, they provided adequate safeguards against exploitation, suppression and oppression of the disadvantaged and deprived citizens for their social, economic and educational development and ultimately, to become an integral part of the mainstream society.

When the policy of positive discrimination/compensatory discrimination for social justice for the Scheduled Castes and Scheduled Tribes was incorporated in the provisions of the Constitution in 1950, it did not generate any debate or trigger any violent reactions as to whether the policy of reservation was the best way of resolving the problems of these downtrodden people because before introducing this policy in legislatures, public services and education for them, a social consensus was built up by the then leadership and the people were convinced that the Scheduled Castes and Scheduled Tribes had been subjected to an appalling degree of subordination and exclusion that was too stark to overlook. So, reservation was necessary to uplift the untouchables and Adivasis.

The lowly place of women in India also goes back to the Manu smriti. This treatise legitimatised the denial of freedom, self-respect, right to education, property, divorce, etc. to women. Hindu women are extolled in the name of goddesses, mythical mothers and sisters but, in reality, they are victims of gender inequalities and discrimination and sexual harassment in our patriarchal society. There are practical inequalities for woman in Islam and Christianity which are known for their egalitarian ethos. Women of Scheduled Castes and Scheduled Tribes are triply exploited on the basis of the caste/tribe, class and gender. Dr. Ambedkar had tried to remove the hurdles in the way of advancement of women in India and struggled for their equal rights and drafted Hindu Code Bill. This Bill though not passed into an Act during his life time, laid down a path for emancipation of women and ultimately had to be passed after his death in piece meal.

With changing times, women's rights have proliferated and women are claiming their subjectivity and asserting their identity as women as opposed to being somebody's wife, sister or daughter. With the opening of market, they are not only more visible in the work place but they are successfully and efficiently heading big corporations and business. They are now successful entrepreneurs. They have carved out their niche in civil services, police and paramilitary forces.

Reservation of privileges and posts in politico-socioeconomic spheres is not unknown to Hinduism and it is as old as the caste system in the Hindu society. For centuries, there had been absolute reservations in practice in all fields, in favour of high castes and classes, to the total exclusion of low castes. The oldest and most authentic example of reservation in Hinduism in its written form is the Manu smriti wherein the rights and privileges of the Brahmins, the Kshatriyas and the Vaishyas are safeguarded, the duties of the Shudras are prescribed and the disabilities on the Avarnas or Panchamas (today's Scheduled Castes and Scheduled Tribes) are imposed. The upper caste Hindus were divinely endowed with rights and privileges also by almost all other Hindu religious scriptures. In modern times, it was Mahatma Jyoti Rao Phule who demanded reservation in Government services for non-Brahmins first time in 1890. Thereafter, Dr. B.R. Ambedkar not only demanded reservations for the under-privileged backward classes and their protection against discrimination but could win away and legalised all such provisionsin the Indian Constitution. The Constitution of India specially prohibits discrimination based on caste, language, race, religion or creed, but even after 70 of its promulgation, this supreme law of the land could not possibly eliminate the impact of the historically deep rooted caste prejudices of Indian society and the discrimination and exclusion of the backward classes is overtly or covertly practiced even today in all fields.

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