October 1, 2022

By Kashish Shah

The author is a first-year law student at National Law University Odisha.

justice and reservation

INTRODUCTION

Out from perspectives and developments that have resulted from our society’s dynamic, there is no doubt that law and justice have played a critical role as a highly abstract concept that has been devoured nearly from the origins of human civilization to our current days. The only necessary conditions for the emergence of law and legal institutions are the creation of a federal society and the acknowledgement by its people of settlements directly binds them in a capacity. In reality, the law of nature, the general principles of civilised norms and the dictates of plain practicality would have to serve for the current requirement. The concept of law and justice is essentially a consequence of a concept that describes both from a philosophical and legal point of view, and most of all conveys the outdated notion that our conscience judges in regards to a right, or distribute justice. Justice is a difficult attribute not only for individuals but also for the nation, from a common standpoint, it is something between the major asset i.e. to commit injustice without being unpunished and the worst misery is to suffer injustice without retaliation. Law implies, elementary notions of fairness. However once created, law defines whatever is done in explicit fulfilment of the rules of law, or is sanctioned and allowed by law. Not everything that is forbidden is right, many things left alone by the state as though in rebellion , only because it is believed that involvement would bring more harm than benefit.

The Indian Constitution has provided reservation[1] in field of employment to ensure socioeconomic justice to disadvantaged and oppressed parts of the society and to bring them into the mainstream of the country. For many years, the caste system in India kept the underprivileged and oppressed sectors of society out of  the social life of the country. As a result of this people in India were deprived of education, access to public places like temple, shops. Justice is crucial because it restores a feeling of citizenship rights and dignity, requires recognition of the suffering and avoids repetency. To provide justice in employment segment of society is one of the most essential goals of a viable state[2]. The usage of justice in Indian constitution is acknowledged in a broader sense that incorporates social justice. Perceptions of justice is a type of subjective idea that fluctuates with time, situation, culture and people’s desires.

GENERAL PERSPECTIVE OF LAW AS A MEANS OF JUSTICE

Justice refers to the concept of receiving what one deserves, as well as fairness, moral righteous and equity. Law has been used to foster a sense of social order through employment of perspective, directive and declarative norms ,supported by varied degrees of punishments, with the standard reason being that it benefits people in society. Fairness occurs when society ensures that each individual is treated equally in the eyes of the law and is given an equal chance to achieve the main goal in a socially balanced life. Every law in a particular society has its own ideological, sociological, philosophical, and historical context. It will undoubtedly benefit and harm various groups in a society, and it cannot serve justice to all of society in the same way. It cannot also treat everyone the same way.There is a need to protect the weaker sections of society by providing them reservation in employment so that the pillar of equality and justice beholds it. The main objective of justice is to combat oppression and prejudice, as well as to establish rule of law.

The idea of reservation[3] examined in Indian constitution has captivated the thoughts of numerous people as it provides reservation to ensure justice to unprivileged people in society and protect them from all types of exploitation. Equality should be ensured for all people, even in socioeconomic life, by the involvement of the state. This can be accomplished through the use of constitutionally mandated seat reservations in public employment. The Indian constitution provides for public employment and directs the state to provide adequate means of living for all citizens, as well as to promote the interests of the community’s weaker members, particularly the schedule casts and schedule tribes, and to protect and increase their representation. Consequently, people belonging to lower casts have not been profited equally from reservation. Almost all groups of beneficiaries, including schedule casts, schedule tribes, or other backward classes or minorities have an increasing sense of deprivation, which is contributing to internal discord[4]. It was believed by the framers of constitution that the weaker sections of society have been supressed so there is a need to provide them justice, give equal opportunity so that they don’t remain under represented.

CHAPTER-1 CONSTITUTIONAL AND LEGAL PROVISIONS SURROUNDING RESERVATIONS IN INDIA

The Madras government reserved seats in various proportions based on religion, race, and caste in Champakam Dorairajan v. State of Madras. This was ruled to be unconstitutional. The government defended its order by citing Article 46 of the Constitution, which states that the state must promote the educational and economic interests of the weaker sections of the population, particularly scheduled castes and scheduled tribes, in order to ensure social justice. The Supreme Court, however, overturned the order because it violated Article 15’s guarantee of equality. To complete the enormous task of social reconstruction and building an egalitarian society, the framers of the constitution thought it fair that people who were socially, economically, and educationally backward should be given special commitments in the form out of possibilities in recruitment and promotion. The deployable evaluation of the policy of special privileges in the form of reservation clearly demonstrates that the policy has failed to achieve the main objectives underlying it. On the flip side, it has developed a vested interest for external implications. The policy was designed to create a classless and casteless society, but it has instead perpetuated divisions. The policy, as it has been implemented, expanded, and sustained, has almost completely distorted the original philosophy. It has created a vested interest in backwardness on the one hand, and a reverse discrimination against the general class on the other. The current policy requires fundamental and drastic changes because it has failed to achieve the desired social reconstruction and has not helped to improve the socioeconomic conditions of the poorer sections. People were taken aback by the Narendra Modi government’s decision to introduce the 124th amendment to the Constitution in 2019 when the laws were amended. include N Nagrajan, Ashok Kumar Thakor, and Indira Shawnay. The Supreme Court made a passing reference to job reservation for the SC and ST[5] in these cases. However, the Supreme Court has stated that reservations should not be increased above 50 percent under any circumstances; however, in most North Eastern states, reservations have been increased to 85 percent, and they have begun a move to increase it to 95 percent, with no action taken by the court. As a result, we can see that the judiciary is also helping to increase reservation for SC and ST people.

CHAPTER 2 –  CONCEPT OF CREAMY LAYER

The “creamy layer”[6] is the small group of people at the top of a marginalised community’s socioeconomic hierarchy. Families that earn more than a certain amount of money or who have attained a certain social status, such as high-ranking positions in government, are typically considered to be part of the “creamy layer”. The term “creamy layer” first appeared in the 1992 Supreme Court decision Indira Sawhaney v. Union of India, which addressed the Mandal Commission’s recommendations for 27 percent reservations for other backward classes in central government jobs. While the Supreme Court stated that the more privileged members of the backward classes should not dominate the reserved categories, the state governments were left to determine the bare bones of the criteria for judging the creamy layer.  The reservation policy was only in effect for ten years after independence, for the advancement of SC and ST, but it is still in effect today, and no action has been taken to amend it. The reason for this is the country’s SC and ST population.[7] SC and ST make up nearly 33% of the voting population, so if they change the reservation policy against the SC and ST, they will suffer greatly as a result. As a result, they are not violating the reservation policy. When a person from a lower socioeconomic class is given a reserved seat in a government job or educational institution, the entire community may benefit alongside the candidate in question. Consider the case of a SC student who goes on to become a medical doctor as a result of reservations. The fact that she has qualified as a doctor now means that connections within her community  members have been opened up. Reservation has been in effect for 61 years. During this time, only new groups have been added to the scheme, and none have been removed. While certain castes continue to benefit in the third generation, the rest of the groups do not receive any benefits at all, even in the first generation. The basic principle is that the underrepresentation of identifiable groups stems from Indian caste systems.

CHAPTER 3-  DOMICILE BASED EMPLOYMENT QUOTA

Domicile refers to the legal relationship that exists between an individual and a territory that has its own legal system, and that individual uses that system as his personal law. The recent decision by the Madhya Pradesh government to reserve all government jobs for “children of the state” raises concerns about the fundamental right to equality. While domicile-based reservations in education have been applied, courts have been hesitant to extend them to employment. When the Constitution went into effect, India was transformed from a geographical unit of individual principalities into a single nation, and the idea of Indian citizenship to become universal took root and since India has common citizenship, which allows citizens to move freely throughout the country, the requirement of a place of birth or residence cannot be used to grant public employment in any state. It is self-evident that talent is not a dominance of any particular State’s residents; it is more or less evenly distributed, and given the right opportunities and environment, everyone has a chance to reach the pinnacle. What is required is equality of opportunity, which cannot be based on where a citizen resides. If every citizen is given an equal opportunity to develop his potential, both genetically and environmentally, he will be able to fully manifest his faculties, leading to overall improvement in excellence. The Supreme Court has ruled that reservations based on place of birth or residence are unconstitutional. The issue of legislation for “sons of the soil” was discussed in the 1984 ruling in Dr Pradeep Jain v Union of India. The court expressed its belief that such policies would be unconstitutional, but did not expressly rule on it because the case concerned various aspects of the right to equality. However, the Court did not expressly prohibit it because the issues in the case were based on a different question concerning the right to equality. The Supreme Court observed that, on the surface, this appears to be constitutionally unconstitutional, though the Court chose not to express a definitive opinion on the matter.

CONCLUSION

Reservation is a means to an end, not an end in itself. As a result, the reservation policy adopted to achieve that goal must be consistent with the goal in mind. Reservation must not outlive its constitutional purpose and must not allow vested interests to develop and perpetuate themselves. Once equality is achieved, there will be no need for reservations. Every reservation based on mild discrimination and justifiably adopted to achieve the constitutional regulations of equality must necessarily be a temporary stepping stone to that end. Reservations must contain the seeds of their own downfall. Any attempt to maintain reservation and undermine the constitutional mandate of equality is harmful to liberty, fraternity, and all of the fundamental values enshrined in the constitution. To achieve equality and freedom for all, a balance must be maintained between competing values and competing claims and interests. India does not lack laws for ensuring justice; rather, it lacks commitment to putting those laws into action. It will be extremely beneficial for the political elite to understand that no country can be considered truly developed until it ensures justice for all segments of society. It should also be remembered that it is not only the political elite’s responsibility to work for the attainment of justice for all sections of society; rather, it is the duty of every Indian to assist his countryman in achieving justice for all sections of society.


[1] Bhagwan Das, ‘Moments in a History of Reservations’(2000) 35 E&PW 3831.

[2] C Basavaraju, ‘RESERVATION UNDER THE CONSTITUTION OF INDIA: ISSUES AND PERSPECTIVES’ (2009) 51 ILIJ 267.

[3] Ibid 269

[4] Pooja Mondal, ‘Reservation System in India: Concept, Arguments and Conclusions’ (Your Article Library, 3rd December 2019) https://www.yourarticlelibrary.com/essay/reservation-system-in-india-concept-arguments-and-conclusions/24973 accessed on 28 November 2021.

[5] Apoorva Mandhani, ‘What creamy layer is & why Supreme Court kept affluent SC, ST members out of quota benefits’ (ThePrint, 4 December 2019) https://theprint.in/theprint-essential/what-creamy-layer-is-why-supreme-court-kept-affluent-sc-st-members-out-of-quota-benefits/329790/ accessed on 28th November 2021.

[6] Ibid

[7] Abhinav Chandrachud, ‘The Creamy Layer & The Cake’ (Bloomberg, 11th January 2020) https://www.bloombergquint.com/opinion/reservations-in-india-the-creamy-layer-and-the-cake-by-abhinav-chandrachud accessed on 1st December 2021.

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