When two human beings born as human being and
hence are equal but one stands at a disadvantageous position whether due to the
historical reasons or because of the perpetuating discrimination, the principle
of equality becomes worthless. He is required to be favored and pushed forward in order to bring him
equal to one who is at advantageous position. This would be equality in the
real sense of the term. However it is also a striking fact that the Indian society
been unequal and where few were exploited and depressed from the historical
times. Different from one that one has suffered due to his colour or race in
Western societies the kind of inequality in our society has totally a different
complexion as it has stemmed from caste. Historically the dalits have been
unable to access education and professions, because of the sickening and
inhuman system of purity and pollution, which remains embedded in religious
communities across India.
Hence Justice PB Sawant says,
“The right to equality without the capacity and
the means to avail of the benefits equally is a cruel joke practiced on the
deprived sections of the society. It widens the social and economic
inequalities progressively with the haves making use of the guaranteed right to
amass the fruits of progress, and the have-nots remaining where they are. The
exceptions (to the right to equality law) enable the State to make the deprived
capable of availing of the benefits which otherwise they would not be able to
do. It is to give effect to the principle of equality that the exceptions
become mandatory in any unequal society such as ours which intends to become
egalitarian.” To treat two unequals equally causes as much injustice as to
treat two equals unequally. The jurisprudence of equality therefore requires
that those below are leveled up to those above".
Though the policy of
affirmative action or positive discrimination by the State in the matters of
public employment has been in vogue for last 73 years, yet the issue has came
to the forefront due to the fact that economic capacity of the State has
substantially shrinked by the policy of economic liberalization and
globalization in which the Public sector is losing significance and private
sector is taking the rein of economic growth in its own hands. This has also
resulted it reduction of employment opportunities to those of depressed class
along with others who were under the program of positive discrimination carried
on by the State were entitled to the reserved post under the provisions of
Article 16(4). Since the public and government sector is itself loosing
momentum the beneficiaries of reservation are also loosing the number of
opportunities available to them. According to the Report of the Working Group on
the Empowering SCs appointed by the National Commission on Scheduled Castes,
the SCs lost about 1,13,430 job opportunities in the central government during
the period 1992-97, constituting a decline of 10.07 per cent. This has also
resulted in competition between the class beneficiary of positive
discrimination by the State. The ugliness of competition for reservations
benefits that identity politics sponsors was seen in the recent violent
conflicts over reservations for gujjars. The fact is that each and every caste
has started making demands for reservation and inclusion in one or another
list, be in SC list or ST list or in OBC list. Rajasthan makes one skeptical of
the reservations policy. There are few issues in a crucial debate that touches
upon issues of equality, justice and national integration.
This has further enhanced the problem in respect
of the depressed class as a whole. A revelation of the reduction of employment
opportunities in the pubic sector made some political parties and their leaders
advance the demand for extending reservations to the expanding private sector.
There is an implicit assumption in this demand that employment opportunities
are increasing in the private sector merely because it is expanding. This problem has pushed
the government to take remedial actions.
There is also a political background to this
issue, which on one hand is consistent with their general political philosophy
while on the other hand also guided by purely opportunistic political game
plan. Some in order to regain their lost committed constituency while other not
to lag behind in this run, are demanding reservation in private sector. As soon
as taking power in centre the Government constituted a Group of Minister to
look in the issue of affirmative action in private sector, which recommended
for affirmative action in private sector thus the party which was once
champions of liberalization strongly lean in favour of reservation in private sector.
Arguments in favour of reservation in private sector:
1. Former Minister for
Employment and Social Justice Meira Kumar has argued that since the government
provides free land, tax exemption, credit from government-owned banks and many
other infrastructure facilities to private industries, it is morally entitled
to ask in return reservations for socially backward people.
2. Though the private
sector strongly says that we do not consider colour of skin or last name or
caste for the purpose of employment yet it is a striking fact that the
depressed class is being discriminated in private sector on the ground of sex,
caste, place or other considerations.
Thus, the policy of liberalization and
privatization reduced the number of employment opportunities in the public
sector, which, in turn, reduced the job opportunities for SC/STs and OBCs in
government administration and government-owned enterprises. However the private
sector strictly refused to accept this proposal as it would affect their
competitive capabilities and profit margin and would in turn affect their
economic viability.
The idea of equality is one of the foundational
values of our Republic. This was one of the core values shared by the various
visions of India articulated by the different strands of our freedom movement.
These strands drew upon different egalitarian traditions within India and the
west, placed different emphases on the various spheres of equality, advocated
different strategies for achieving equality and indeed differed in how much
weight they accorded to the idea of equality in their vision of future India.
Yet it was quite evident to the builders of modern India that the freedom
movement drew a good deal of its energy not just from an urge to achieve
political freedom but also from the aspiration for equality. It was natural
therefore that the idea of equality was enshrined as first among the
Fundamental Rights in the Constitution of India. The Preamble to the Constitution
includes “Equality of Status and of Opportunity to all Citizens” as one of the
guiding values for the new Republic.
The idea of equality is not merely a principle propounded by
legal experts and respected by courts of law. It has a much wider resonance in
the country’s public life.
The egalitarian strands in the freedom movement
acquired a much wider presence in post-independence India and have come to
shape the language of State policy, political discourse and public opinion.
Every one of the eleven Five Year Plan documents talks of elimination of
poverty, reduction of inequalities and securing just conditions of life for the
most deprived groups in society. The National Policy on Education identified
that its main task was to ‘strengthen the base of the pyramid’. Expressions
such as these are routinely used in the Presidential Address to the Parliament
and to the Nation.Thus one of the aspect of equality is the equality of
opportunity which has been examined in the succeeding part.
The Concept of Equality of
opportunity
The equality of opportunity derives its content from the
idea of equality, which is that there should not be discrimination. This idea
can be further articulated by saying that any person in the matters of employment
and work opportunity should not be discriminated on the irrelevant grounds.
Such grounds which in their essence do not have any bearing upon the
suitability and efficiency of any person can be sex, race, caste, place of
birth, sexual orientation, eating habits, nationality etc. It is almost
universally recongnised principle that law should impliedly or specifically
should prohibit the employers from discrimination in the matters of employment
on such irrelevant grounds.
Judicial View on Equality of
Opportunity
This foundational value was secured through two
kinds of provisions in the Constitution. Articles 14, 15, 16 and 17 secure
formal equality before the law, stipulate equal opportunity in employment and
prohibit unjust discrimination based on accidents of birth. Having secured
this, the Constitution goes on to make some provisions for substantive
equality. Some of these provisions for substantive equality were included in
Articles 15(3), (4) and (5), 16(3), (4), (4A), (4B) and (5) and 17 in Fundamental
Rights in Part III of the Constitution and Articles 330 to 342 in Part XVI of
the Constitution. As such, a model of equality of opportunity that goes beyond
the formal to recognize substantive equality is very much a part of the “basic
structure of the Constitution.” This privileged
constitutional status for substantive equality places any mechanism for
ensuring equality of opportunity on a sounder footing than is the case
elsewhere in the world.
A substantive reading of the idea of equality in
the Constitution is considerably strengthened by Directive Principles of State
Policy in Part IV. The Directive Principles expand the scope of the idea of
equality beyond political equality to include equality in the socio-economic
sphere.4 The Directive
Principles also enjoin a positive duty upon the State to secure these rights of
the citizens. These provisions require the State to eliminate inequalities of
opportunity among individuals as well as groups, to secure a just social order,
and provide education, work and social welfare benefits to all its citizens.
The creation of an institutional mechanism to secure and protect equality of
opportunity flows from this constitutional mandate.
The Constitution as interpreted by the courts
supports the substantive approach to equality of opportunity. The provisions of
the Constitution make it quite clear that the Constitution goes beyond merely
prohibiting direct discrimination. The Constitution vide DPSP clearly enjoin
upon the State a positive duty to strive to minimize the inequalities in
income, and endeavor to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but also amongst groups of people
residing in different areas or engaged in different vocations. The Supreme
Court of India has variedly spelt out the rich dimensions of Art 14 of the
Constitution. The court has perceived the mandate of Art 14, as the obligation
of the State to progressively ensure equality of status and parity of
conditions in order that every citizen is able to realize her welfare and
well-being without any externally created impediment. Some of the landmark
judgments of the Supreme Court provide an interpretation of the idea of equal
opportunity.
For instance in N.M. Thomas case the proviso to a rule on departmental tests for
promotion of lower division clerks to upper division clerks had been challenged
as it granted a temporary exemption of two years to Scheduled Castes and
Scheduled Tribes whereby they got additional time to take the tests after they
had been promoted. The Supreme Court upheld the validity of the impugned rule.
Chief Justice Ray said,
“The guarantee of equality before the law or of
the equal opportunity in matters of employment is a guarantee of something more
than what is required by formal equality. It implies differential treatment of
persons who are unequal. Egalitarian principle has therefore enhanced the
growing belief that Government has an affirmative duty to eliminate
inequalities and to provide opportunities for the exercise of human rights and
claims.” He further said “The rule of classification is not a natural and
logical corollary of the rule of equality but the rule of differentiation is
inherent in the concept of equality. Equality means parity of treatment under
parity of conditions.”
Justice K. K. Mathew gave a detailed opinion on the equality
of opportunity while upholding the validity of the rule. According to him, the ultimate reason for the demand of equality
for the members of backward classes is a moral perspective which affirms the
intrinsic value of all human beings and calls for a society which provides
those conditions of life which men need for development of their varying
capacities……The notion of equality of opportunity’s a notion that a limited
good shall in fact be allocated on the grounds which do not a priori exclude
any section of those that desire it…. ......The question therefore is: On what
basis can any citizen or class of citizens be excluded from his or their fair
share of representation? As I said, the notion of equality of opportunity has
meaning only when a limited good or, in the present context, a limited number
of posts, should be allocated on grounds which do not a priori exclude any
section of citizens of those that desire it.
Human Right Aspect of Equality of
Opportunity:
India is obliged to implement the principle of equality in
all fields of human walk including employment and work under international
covenants, which she is signatory. The main provisions relating to equality of
opportunity in International jurisdiction are as follows:
1.
Universal Declaration of Human
Rights (UDHR)
Articles 1, 2 and 7 of the UDHR guarantee all persons with
the rights and freedoms provided in the Declaration without any distinction on
the basis of race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. All persons are
entitled to equal protection before the law and to equal protection against any
discrimination in violation of this Declaration and against any incitement to
such discrimination.
2.
International Covenant on Civil and
Political Rights (ICCPR)
Article 26 guarantees the right to equality and to the equal
protection of the law. It prohibits discrimination based on the grounds of
race, colour, religion, national or social origin, birth or other status,
property and political or other opinion.
3.
International Covenant on Economic,
Social and Cultural Rights (ICESCR)
Article 7 guarantees the right to the enjoyment of just and
favourable conditions of work as well as fair remuneration, and in particular
recognizes that equal opportunity be provided so that everyone can be promoted
to an appropriate higher level based solely on their seniority and competence.
Article 13 recognizes the right to education of all persons
and states that secondary and higher education, including technical and
vocational education shall be available as well as accessible by all persons by
appropriate means. Secondary and higher education shall progressively be made
free.
4.
Convention on the Elimination of
Discrimination Against Women (CEDAW)
Article 3 mandates state parties to take appropriate
measures in the political, social, economic and cultural spheres to ensure the
full development and advancement of women.
Article 4 states that temporary special measures aimed at
accelerating de facto equality between men and women shall not be considered as
discrimination as defined in the Convention, and shall be discontinued when the
objectives of equality of opportunity and treatment have been achieved.
5.
Convention on the Rights of Persons
with Disabilities
Article 3 lists non-discrimination, equality of opportunity
and, the respect for difference and acceptance of persons with disabilities as
part of human diversity, as the general principles of the Convention. Specific
measures which are necessary to accelerate or achieve de facto equality of
persons with disabilities shall not be considered discrimination under the
present Convention.
The above mentioned International Instruments clearly shows
that the human right of equality of opportunity that binds in India under the
international obligation to secure equality of opportunity to all and to
protect from discrimination on the ground either of sex, caste, place of birth,
religion etc.
Reservation as Strategy to Achieve
Substantive Equality
The strategy of reservation of equalising opportunities for
identified groups long discriminated has been in vogue for the last several
decades. However, for a variety of reasons, the strategy of removal of
disabilities could not automatically bring about equalisation of life chances
to many groups in our heterogeneous society. Deprivation and exclusion are
complex processes which warrant multi-pronged approaches by way of creation of
parity of conditions through legislative and executive action. This is the
affirmative action agenda which is in addition to the reservation strategy that
is now available only for certain deprived groups. In other words, we need to
look now for policies and programmes to supplement the existing system of
reservations to enable the deprived groups to find equal opportunities to
access rights and entitlements.
PROBLEMS RELATING TO RESERVATION IN
PRIVATE SECTOR:
But before going into further discussion on other issues in
this paper it is necessary to examine few of the problems which are existing in
factual state in case private sector resevations. Those are the followings:
1. Legal status: The Constitution makes
provision under Article 16(4) for reservation in employment for socially and
educationally backward people. Without taking into consideration the language
of Article 16 (4), one State Government prepared legislations in the private
sector. Though it was not enacted, that draft has become a reference document
for even the central UPA government to threaten the private sector with
legislation. The argument on the part of government in favour of reservation is
that since the government provides free land, tax exemption, credit from
government-owned banks and many other infrastructure facilities to private
industries, it is morally entitled to ask in return reservations for socially
backward people. In some states the state governments have forced private
educational institutions which receive government grants to provide
reservations in admissions as well as in jobs. However such argument is not
sustainable in respect of those private industries which do not receive any
such sops from the government and fail on constitutional touchstone. This
constitutional issue will have to be decided by the Supreme Court.
2. Implementation: In respect of
implementation of reservation policy in private sector involves a number of
issues. They are as following:
i. Identification of Beneficiaries: The first issue to be decided is whether job
reservations in private sector will be confined to the SC/STs only or OBCs too.
This is because there is no uniformity of the castes included in OBCs lists across
the states and in some States Brahmin also falls in OBCs list. One way out of
this quagmire is to follow the Mandal Commission’s recommendations, which has
specifically listed OBCs in each state. Even after solving this issue, there
still remains the issue of excluding the creamy layer among OBCs. Though the
Supreme Court asked the centre and the state governments to prescribe
appropriate income limits for eliminating the creamy layer among the OBCs, it
has been done so haphazardly in many states. Under these circumstances, it is
not desirable to force the private industries to make reservations for OBCs.
ii.
Demerits of Prevalent Policy: Private industries are already employing a
large number of OBC candidates but based only on their merit and performance.
Therefore, the case for reserving jobs for OBCs in the private sector is not as
strong as it is in the case of SC/STs. If by force of law it is imposed,
consequently, all the inadequacies (arbitrary inclusion of castes) and abuses
(false caste and income certificates) of the existing reservation policy will
impose considerable costs on the private sector. On the other hand even the
SC/ST lists are not free from dispute because one caste
is included in one list while in other in other State. This has happened
because of the defective lists of SCs and STs which were prepared by the
colonial provincial governments and revised in haste by the later state
governments. As a result, the deserving SC/STs have not enjoyed the benefits of
guaranteed reservations to the expected extent. What has happened is that the
more dominant and articulate among them have come to monopolise the benefits.
In way back in 1960s revision of the list of ST/SCs to exclude caste which were
not untouchables was demanded, upon which a Lakur committee constituted. The
committee recommended rescheduling of 18 scheduled castes and 13 scheduled
tribes constituting 2.23 crore people. Because of fear to loose large chunk of
electorate support the recommendations were thrown into dustbin and it ended a
sincere attempt of weed out SC/ST lists.
Supreme Court, which ruled that such
proportionate reservation should be done by parliament.The matter stands there for
the present. With such defective lists of SC/STs and OBCs, it would be very
difficult for the government force reservations on the private sector.
Magnitude of Reservation:
There is no mention of either the magnitude of
reservation or duration of such a policy under Article 16(4). Proportional
representation in the principle only for Articles 330 and 332 and not Art.
16(4). The state governments which implemented reservation in government jobs
followed the guideline in Indra Sahwney
case under Article 16(4). But in the case of OBCs, some states like Tamil Nadu
went beyond what can be considered reasonable and reserved as much as 69%. But,
the Supreme Court made it clear that the magnitude cannot exceed 50%. The court
observed:
we must, however, point out that clause (4)
speaks of adequate representation and not proportionate representation.
Adequate representation cannot be read as proportionate representation.
Principle of proportionate representation is accepted only in Articles 330 and
332 of the Constitution and that too, for a limited period. These Articles
speak of reservation of seats in Lok Sabha and the state legislatures in favour
of STs and SCs proportionate to their population. But they are only temporary
and special provisions. It is, therefore, not possible to accept the theory of
proportionate representation though the proportion of population of backward
classes to the total population would certainly be relevant. Just as every
power must be exercised reasonably and fairly, the power conferred by clause
(4) of Article 16 should also be exercised in a fair manner and within
reasonable limits – and what is more reasonable than to say that reservation
under clause (4) shall not exceed 50 per cent of the appointments or posts,
barring certain extraordinary situations.The Mandal Commission recommended for
OBCs reservation upto half of the 52 % total population. Even after adding the
reservation for SC/ST the total reservation does not exceed the above limit.
But, as per the Lakur committee recommendations, if SC/ST reservation quota is
reduced by one-third, it will stand at 12 per cent. Similarly if we exclude the
undeserving OBC on the basis of the creamy layer criterion, their share may
come down to about 12 per cent. Together the whole reservation will be about 24
or 25 per cent. But there is no compelling justification for providing
reservations for OBCs in the private sector. So we are left with 12 per cent
reservation for the SC/STs, which is reasonable and may not impose unbearable
costs on the private sector.
This is also consistent with the Supreme Court view that
Article 16 (4) does not permit proportionate reservation. However such
reduction or exclusion would certainly brawl those belonging to the class.
3. Cost effectiveness: The next question is
the costs which the proposed policy may impose on the private sector. Most of
the industry spokesmen have argued that reservation will ruin their competitive
edge because of relaxation of merit as the sole criterion for selecting the
workforce.
i.
Lower Productivity Level: The dilution of merit in the name of
reservation will impose a cost (in terms of lower labour productivity) on the
industries, which may not be able to compete in the global markets. This is a
genuine fear because our past experience in PSUs and even in government
departments has shown that those who get secured jobs become indifferent to
their duties and responsibilities. This is much more so among persons who enter
government service under the reserved category. Consequently, governments have
become inefficient and ineffective.35
Though, in theory, public enterprises and the governments in
power are accountable and responsible to the legislature, in actual practice,
nobody has enforced accountability and responsibility.
But private enterprises are accountable to the
board of directors and shareholders. Private enterprises cannot afford to
become inefficient and lose on productivity. If government enterprises incur
losses, the government can pour in public money to shore them up. But if a
private enterprise incurs losses because of low productivity, it will have to
eventually fold up.36
ii.
Merits of Aspirants: There is another angle to the cost of
reservations in the private sector. Merit for civil services and jobs in public
enterprises is mainly determined by the marks secured in university examination
and/or prescribed tests besides, articulation and ability to make decisions may
be expected as additional qualifications for higher level civil service jobs.
In the private sector, necessary criterion are special skills for the job, a
capacity to work hard, an ability to make quick decisions, a pleasant
personality, an attitude to get along well with others in the organisation and
an ability to work in teams are required. A reservation policy in the private
sector may impose regulation on the selection process and the standard
yardsticks for selection which may take away the freedom which the private
enterprises enjoy. The reservation policy may also act as a regulation of the
recruitment policy and practice of private enterprises.
iii.
Application in respect of Promotions: Another issue relates
to the security of the jobs provided under the reservation policy and the
applicability of reservations in promotions. The private sector in India has
gradually moved away from the practice of appointing personnel until their
retirement age to making contract appointments to get over the costs imposed by
stringent labour laws. This contract appointment system should not be disturbed
by reservation policy as otherwise it will amount to making the existing labour
laws more stringent. Further, the Constitution has been amended to add Article
16 (4A), which provides for reservations in promotions for the SC/STs. If that
policy is imposed on the private sector Indian industry will fail to attract
skilled and talented manpower which will adversely affect its competitive edge.
4. Beneficiaries of
reservations: In the whole debate on reservations in the private sector there
is an implicit assumption that job opportunities are growing. This is a
doubtful assumption because most of the countries whose economies are driven by
the private sector are experiencing ‘job- less growth’ resulting from the
spread of sophisticated technology. In India it is not only the use of
sophisticated technology in the production process, but also the stringent
labour laws that are creating resistance to employing more labour. So, job
opportunities may not increase in the private sector as rapidly as some would
expect.
5. Availability of Talent
Pool: Then
arises the question of the availability of talent pool in the target group. For
the last 50 years it has not been possible for the SC/STs to enter IITs &
IIMs in significant numbers because of the very high standard of tests
prescribed. The private sector makes large recruitments from IITs and IIMs. If
qualified SC/ST candidates are not available in talent pool, they will not get
benefit of reservation, because the government cannot force the private sector
to lower the standards as it will adversely affect its productivity. The range
of marks required for selection is 80- 95 % in engineering and/or management
courses, not many SC/ST candidate may qualify that range of marks. Therefore
reservations in the private sector may not benefit a significant number of
SC/ST candidates because they are not equipped to tap employment opportunities
in the private sector. Consequently, they will have to be satisfied with
unskilled and semi-skilled jobs.
POSSIBILITY OF RESERVATION IN
PRIVATE SECTOR:
1.
Developments till Date
The reservation policy which was for the first
time adopted in the 1936 whereby reservation for SC/STs were provided in
education and government sector employment was further extended and carried
forward after Independence. The reservation policy were articulated in various
Articles of the Constitution. One aspect of reservation namely employment was
raised to the stature of Fundamental Rights under Part III of the Constitution
as the outset. After Champkam Case the Parliament was compelled to insert clause
(4) in Article 15, which further empowered the State to impose reservation in
favour of socially and educationally backward class of citizens in education.
These developments were when came under judicial scrutiny
the judiciary invariably upheld the reservation policy in relation to
government sector whether in employment or in admission. Though certain
restrictions such as 50% maximum limit of reservation or exclusion of creamy
layer from the benefit of the reservation has been imposed yet the policy has
been by and large adhered to.
However in the present times since the employment
opportunities are reducing in the government and public sector enterprises
because of varying reasons such as orientation of government largely towards
regulatory than to carry on business and services. Similarly the public sector
enterprises were since making a big dent in public exchequer, the government
was compelled to disinvest them. These developments have resulted in
substantial reduction of employment opportunities for the depressed class.
Besides since the public sector enterprises are disinvested they have been turn
towards the private sector and therefore private sector is also expanding. Also
with the rapid growth in the economy and heavy FDI in private sector has also
resulted in expansion of employment opportunity in private sector.
Upon this backdrop the depressed class
comprising of SCs, STs and OBCs started demanding reservation in private
sector. There are two basis for this
demand:
1. Private sector being the part of the
country is also under a moral obligation to follow the Government policies.
2. Private sector is still continuing
to make discrimination in employment on the ground of sex, caste, race, place
of birth etc.
However till date there is no judicial pronouncement on
reservation in private sector employment, nor there is any legislation in this
field except one draft Bill of Maharastra. In this situation it would be
suitable to examine the judicial outlook in the matters of reservation in private
sector educational institution so as to draw an analogy as to what would be
judicial view if the policy of reservation is imposed in private sector
enterprises.
2.
Reservation in Private Educational
Institutions
In the field of education the policy of reservation in
government education institutions and government aided institutions were in
prevalence prior to Independence which even continued after insertion of cl (4)
in Article 15. But when the government sought to impose reservation in private
educational institution and private unaided educational institution the matter
went to Supreme Court.
The Supreme Court in following decision examined the issue
in great detail.
In TMA Pai Foundation, an 11-judge bench
of the Supreme Court held that a private unaided educational institution has a
fundamental right under Article 19(1)(g) with respect to the establishment and
administration of educational institutions.
Disagreements relating to the ratio of the case
led to the constitution of a five-judge bench in Islamic Academy of
Education entrusted with the task of clarifying the judgment in TMA Pai
Foundation. Subsequently, a seven-judge bench was constituted in P.A
Inamdar to assess the clarification in Islamic Academy of Education
and confirm the Ratio in TMA Pai Foundation. P.A. Inamdar made it
abundantly clear that the law as per TMA Pai Foundation was that
“neither can the policy of reservation be enforced by the State nor can any
quota or percentage of admissions be carved out to be appropriated by the state
in a minority or non-minority unaided educational institution”
Thus after these decisions the SC seized the State’s right
to impose its reservation policy on the private institutions. This critical
situation created frustration among the reserved category candidates and
legislatures. Because of this very situation the parliament had to enact law
about reservation in private educational institutions.
In order to lessen the frustration among the
reserved category candidates the Parliament introduced an amendment, the
Constitution (93rd Amendment) Act, 2005 in Art. 15 and inserted an
additional clause (5) in the same article which runs as follows:
“Noting in this Article or in sub clause (g) of
clause (1)of Art. 19 shall prevent from making any special provision by law,
for the advancement of any socially and educationally backward classes of
citizens or for the SCs or STs in so far as such special provisions related to
their admission to educational institutions including aided or unaided by the
state other than the minority educational institutions referred to in clause
(1) of Art. 30.”
3. Validity of 15(5): Private Unaided
institutions
Hence, under Article 15(5) the State was enabled
to regulate admission in private unaided institutions, something they were
unable to do after the decision in TMA Pai Foundation and the subsequent
cases clarifying it. It is important to note that although the Court in A K
Thakur was bound by the decision in TMA Pai Foundation, the change
in the text of Article 15 by the introduction of Article 15 (5) may have
altered the constitutional basis of the decision in TMA Pai.
In order to bring into reality the provision of
Article 15(5) the Parliament enacted Central Educational Institutions Act,
2005. Only one of the aspects of Article 15(5) is covered by the legislature in
the Central Educational Institutions Act, while Article 15 (5) does apply to
private unaided institutions. The Supreme Court confronted with the validity of
the amendment as well as the Act of 2005 in Ashok Kumar Thakur v Union of
India. However, the majority
of the Court declined to pronounce on the question whether the application of Article
15(5) to private unaided institutions violated the basic structure of the
Constitution. As no private unaided educational institution was arrayed as a
petitioner in
A K Thakur, four out of five judges found that a decision
on this issue was unnecessary and would be properly made when appropriate
parties were before it. Justice Bhandari, however, chose to delve into the
issue. In an elaborate justification for doing so, he acknowledged that no
unaided institution had filed a petition. Yet he noted that as the best
counsels in the country had appeared in the case he concluded that a brief from
an unaided institution would have contributed little to the arguments already
before the Court. Since the question of unaided institutions was likely to
arise in the future, it was best, according to justice Bhandari, to resolve it
now rather than go through the “entire exercise de novo”. In light of these
“extraordinary facts”, justice Bhandari examined the validity of Article 15(5)
with respect to private unaided institutions and held that an imposition of
reservation of this sort would violate Article 19(1)(g) and thus the basic
structure doctrine, and observed:
Imposing reservation on unaided institutions
violates the basic structure by obliterating citizens' 19(1)(g) right to carry
on an occupation. Unaided entities, whether they are educational institutions
or private corporations, cannot be regulated out of existence when they are
providing a public service like education. That is what reservation would do.
That is an unreasonable restriction. When you do not take a single paisa of
public money, you cannot be subjected to such restriction. The 93rd
Amendment's reference to unaided institutions must be severed.
Thus he severed the 2005
Amendment’s reference to unaided institutions, also on the basis of
Fundamental Right to carry on business, occupation and profession because the
government may suspend Articles 14 and 19 rights in order to implement an
emergency but not otherwise and hence unreasonable restriction upon this such
right is not permissible under the Constitution as he observed:
Freedom under Article 19 belongs to individual
citizens. Article 19(1)(g) provides that
"all citizens shall have the right to
practice any profession, or to carry on any occupation, trade or
business." The reference to "all citizens" means that each and
every individual citizen possesses Article 19 rights. For the impugned
legislation to fall, it need not touch every sphere of society. If even one
individual's freedom has been curtailed, this Court is duty bound to entertain
his or her claim. It is he or she who possesses the Article 19(1)(g) right to
carry on an occupation.
Two important issues arise out of Justice Bhandari’s
examination. First, is the majority’s decision to avoid pronouncing on the
application to private unaided educational institutions a political move?
Secondly, does justice Bhandari’s conclusions on the validity of Article 15(5)
as it applies to private unaided institutions a correct application of the basic
structure doctrine? We will address each of these in turn.
While some commentators have expressed surprise
at the majority’s approach, generally courts may legitimately limit their
decision to resolving particular disputes before them particularly in
Constitutional cases.
However, the state action being challenged in
this case is the amendment introducing Article 15(5) and the CEI Act. As the
constitutionality of Article 15(5) is under review, the Court was called upon
to pronounce on the scope of its application to private unaided educational
institutions. To that extent, this was a proper issue for the Court to decide
in A K Thakur. Moreover, the Supreme Court is often found to be going
beyond the issues in dispute in a particular case, and clubbing similar cases
in a manner, that allows it to pronounce on constitutional issues generally and
not confine itself to the facts of the case before it.
In the light of this track record and the nature of legal
challenge before it, the refusal to address the full scope of Article 15(5) is
defensible only if it initiates a new rule of court discipline which will be
followed in all cases hereafter.
Justice Bhandari’s application of basic structure review to the
scope of Article 15(5) could not bind any future bench that will be called upon
to decide this question. However, as it is the first view expressed by the
Court on the question, it is likely that the Court will look to affirm or
distinguish this view in future cases.
However, justice Bhandari’s analysis in A K
Thakur finds that Article 15(5) would violate Article 19(1)(g) which
guarantees to all citizens the right to carry out any business or profession.
It is not clear from the opinion, the extent to which Article 19(1)(g) has a
bearing on the basic features of the Constitution and why Article 15(5) must
comply with Article 19(1)(g) to be upheld by the Court. We had noted earlier
that the Supreme Court has held in TMA Pai that Article 19(1)(g)
prevents the state from creating reservation quotas in private unaided
educational institutions.
Ashoka Kumar Thakur vs . Union of India
Whether the Constitution (Ninety-Third Amendment) Act, 2005
against the basic structure of the Constitution itself and abridging the
equality principles and were sought to be declared ultra vires the Constitution
guaranteed under Article 15 and other provisions of the Constitution Whether
Ninety-Third Amendment of the Constitution is against the basic structure of
the Constitution Held, No, the Constitution (Ninety-Third Amendment) Act, 2005
does not violate the basic structure of the Constitution so far as it relates
to the state maintained institutions and aided educational institutions Incase
of private unaided educational institutions, the issue left open to be decided
in an appropriate case Clause (5) of Article 15 of the Constitution inserted by
the amending act is an enabling provision which states that nothing in Article
15 or in Sub-clause (g) of Clause (1) of Article 19 would prevent the State
from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the
Scheduled Tribes in so far as such special provisions relate to their admission
to the educational institutions including private educational institutions,
whether aided or unaided by the State Minority educational institutions
referred to in Clause (1) of Article 30 to be excluded Act 5 of 2007 was
enacted to provide reservation of seats for Scheduled Castes, Scheduled Tribes
and SEBCs of citizens in Central Educational Institutions Central Educational
Institution are the one as defined under Section 2(d) of the Act Act 5 of 2007
does not intend to provide reservation in private unaided educational
institutions Kesavananda Bharati's case clearly indicated about what is the
basic structure of the Constitution Basic structure of the Constitution is to
be taken as a larger principle on which the Constitution itself is framed If
any Constitutional amendment is made which moderately abridges or alters the
equality principle or the principles under Article 19(1)(g), it cannot be said
that it violates the basic structure of the Constitution If such a principle is
accepted, the Constitution would not be able to adapt itself to the changing
conditions of a dynamic human society As has been previously held when a
constitutional provision is interpreted, the cardinal rule is to look to the
Preamble to the Constitution as the guiding star and the Directive Principles
of State Policy as the 'Book of Interpretation' Preamble embodies the hopes and
aspirations of the people and Directive Principles set out the proximate
grounds in the governance of this country Hence, the Ninety-Third Amendment to
the Constitution does not violate the basic structure of the Constitution so
far as it relates to aided educational institutions Constitution Reservation
for Admission in educational institutions or for public employment Whether
Articles 15(4) and 15(5) are mutually exclusive and contradictory Whether
Article 15(5) is to be held ultra vires Held, Article 15(5) constitutionally
valid and Articles 15(4) and 15(5) are not mutually contradictory. Both Article
15(4) and 15(5) are enabling provisions and operate in different areas. If the
intention of the Parliament was to exclude Article 15(4), they could have very
well deleted Article 15(4) of the Constitution. Minority institutions are also
entitled to the exercise of fundamental rights under Article 19(1)(g) of the Constitution,
whether they be aided or unaided. But in the case of Article 15(5), the
minority educational institutions, whether aided or unaided, are excluded from
the purview of Article 15(5) of the Constitution Thus, both, being enabling
provisions, would operate in their own field and the validity of any
legislation made on the basis of Article 15(4) or 15(5) have to be examined on
the basis of provisions contained in such legislation or the special provision
that may be made under Article 15(4) or 15(5) Constitution Validity of
Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of
2007 Whether exclusion of minority educational institutions from Article 15(5)
violative of Article 14 of Constitution Held, No, as the minority educational
institutions, by themselves, are a separate class and their rights are
protected by other constitutional provisions Plea not tenable because the
minority institutions have been given a separate treatment in view of Article
30 of Constitution Such classification has been held to be in accordance with
the provisions of the Constitution. The exemption of minority educational
institutions has been allowed to conform Article 15(5) with the mandate of
Article 30 of the Constitution. Moreover, both Article 15(4) and Article 15(5)
are operative and the plea of non-severability is not applicable Article 15(4)
and Article 16(4) are not exceptions to Article 15(1) and Article 16(1)
respectively If at all there is any violation of Article 14 or any other
equality principle, the affected educational institution should have approached
the Court to vindicate their rights No such petition was filed, therefore, the
exclusion of minority educational institutions from Article 15(5) not violative
of Article 14 of the Constitution.
Society for Un-aided Private Schools
of Rajasthan v UOI
Applicability of enactment - Article 21A, 30(1) of
Constitution f India, 1950; Sections 2(n), 38 of Right of Children to Free and Compulsory
Education Act, 2009 - Issue was with regard to applicability of Right of
Children to Free and Compulsory Education Act, 2009 ("2009 Act") to
unaided non-minority schools - Held, Article 21A of Constitution, casted an
obligation on State to provide free and compulsory education to children of age
of 6 to 14 years and not on unaided non-minority and minority educational
institutions - Rights of children to free and compulsory education guaranteed
under Article 21A of Constitution and RTE Act, could be enforced against
schools defined under Section 2(n) of Act, except unaided minority and
non-minority schools not receiving any kind of aid or grants to meet their
expenses from appropriate governments or local authorities - Section 12(1)(c)
of Act, was read down so far as unaided non- minority and minority educational
institutions were concerned, holding that it could be given effect to only on
principles of voluntariness, autonomy and consensus and not on compulsion or
threat of non- recognition or non-affiliation - No distinction or difference
could be drawn between unaided minority and non-minority schools with regard to
appropriation of quota by State or its reservation policy under Section
12(1)(c) of Act - Such an appropriation of seats could also not be held to be a
regulatory measure in interest of minority within meaning of Article 30(1) of
Constitution or a reasonable restriction within meaning of Article 19(6) of
Constitution - Right established by Article 30(1) of Constitution, was a
fundamental right declared in terms absolute unlike freedoms guaranteed by
Article 19 of Constitution, which was subject to reasonable restrictions -
Article 30(1) of Constitution, was intended to be a real right for protection
of minorities in matter of setting up educational institutions of their own
choice - However, Regulations might lawfully be imposed either by legislative
or executive action as a condition of receiving grant or of recognition.
However, such Regulation must satisfy test of reasonableness and that such
Regulation should make educational institution an effective vehicle of
education for minority community or for persons who resorted to it -
Appropriate Government and local authority had to establish neighbourhood
schools as provided in Section 6 read with Sections 8 and 9 of Act, within time
limit prescribed in Statute - Duty imposed on parents or guardians under
Section 10 of Act, was directory in nature and it was open to them to admit
their children in schools of their choice, not invariably in neighbourhood
schools, subject to availability of seats and meeting their own expenses -
Sections 4, 10, 14, 15 and 16 of Act, were held to be directory in their
content and application - Concerned authorities should exercise such powers in
consonance with directions/guidelines laid down by Central Government in that
behalf - Provisions of Section 21 of Act, as provided, would not be applicable
to schools covered under Sub-section (iv) of Clause (n) of Section 2 of Act -
They should also not be applicable to minority institutions, whether aided or
unaided - In exercise of powers conferred upon appropriate Government under
Section 38 of RTE Act, Government should frame rules for carrying out purposes
of this Act and in particular, matters stated under Section 38 (2) of RTE Act -
Directions, guidelines and rules should be framed by Central Government,
appropriate Government and/or such other competent authority under provisions
of RTE Act, as expeditiously as possible and, in any case, not later than six
months from date of pronouncement of this judgment - All State Governments
which had not constituted State Advisory Council in terms of Section 34 of RTE
Act, shall so constitute Council within three months from today - Council so
constituted should undertake its requisite functions in accordance with
provisions of Section 34 of Act and advise Government in terms of Clauses (6),
(7) and (8) of this order immediately thereafter - Central Government and State
Governments might set up a proper Regulatory Authority for supervision and
effective functioning of Act and its implementation - Madrasas, Vedic
Pathshalas etc. which predominantly provided religious instructions and did not
provide for secular education stand outside purview of Act - Right of Children
to Free and Compulsory Education Act, 2009 was constitutionally valid and
should apply to following: (i) a school established, owned or controlled by
appropriate Government or a local authority; (ii) an aided school including
aided minority school(s) receiving aid or grants to meet whole or part of its
expenses from appropriate Government or local authority; (iii) a school
belonging to specified category; and (iv) an unaided non-minority school not
receiving any kind of aid or grants to meet its expenses from appropriate
Government or local authority - However, said 2009 Act and in particular
Sections 12(1)(c) and 18(3) of Act, infringed fundamental freedom guaranteed to
unaided minority schools under Article 30(1) and, consequently, applying R.M.D.
Chamarbaugwalla v. Union of India, principle of severability, said 2009 Act
should not apply to such schools - This judgment would apply from academic year
2012-13 - However, admissions given by unaided minority schools prior to
pronouncement of this judgment should not be reopened - Petitions disposed of.
ISSUE OF CONSTITUTIONALITY OF
RESERVATION IN PRIVATE SECTOR:
The noteworthy fact here is that there are only two parties
to the reservation in public sector:
1. the claimants of Art. 15 (1) and
Art. 16 (1);
2. the claimants of Art. 15 (4) and
Art. 16 (4)
But in respect of reservation in private sector a third
party is also involved in the form of employer, who claims protection under
Art. 19 (1)(g). Therefore it is tripartite conflict:
1. Claimants of Art. 15 (1) and Art. 16
(1) on the basis of merit;
2. Claimants of Art. 15 (4) and Art. 16
(4) on the basis of equal opportunity and under-representation;
3. Claimants of Art. 19(1)(g) on the
ground of right to carry on business, trade and occupation and such reservation
amounting to unreasonable restriction upon such right.
From the point of view of the second party of the above
tripartite conflict the point of contention are two:
i.
Because
of historical reasons being low of merit, an affirmative action must be made by
State in private sector;
ii.
Even
meritorious they have been discriminated on the ground of their caste in the
private sector.
Overview of Policies and
Programmatic Interventions in India
As pointed out earlier, the affirmative action programme in India
primarily consists of caste-based quotas in public sector employment,
educational institutions that use public money. The evidence on the
implementation of the programme suggests that the actual representation of
SC-STs has been less than the stipulated quotas in government jobs. In central
government jobs, the proportion of SCs is high in group D employees (as
compared to Groups A, B and C). This unfortunately is primarily due to over
representation of SCs in sweeping and cleaning jobs. STs are underrepresented
in Groups A and B, and mostly concentrated in Groups C and D. It is however
true that the representation of SCs and STs in public sector undertakings has
been rising over time. The compliance, nonetheless, is greater with quotas at
the lower end jobs when compared to the higher end jobs. Similar trends are
discernible in insurance and banking companies. It is important to point out
that as the economy is liberalizing and privatizing, avenues for employment in
the public sector have stagnated and in some sectors, even shrunk in recent
years.
This suggests that the case for increasing representation of
SCs and STs remains strong. And, this can be attempted more effectively through
an incentive system, bringing the private sector within its framework. Studies
on the implementation of affirmative action in educational institutions reveal
a similar picture. Since affirmative action is not applicable to the private
sector, a very large segment of the economy is outside the purview of any
mandatory government policy to increase representation of disadvantaged groups.
In a non-discriminatory world, all public spaces
will be diverse (public “spaces” include privately owned business, housing
societies and schools since the functions they perform are of a quasi-public
nature). If hiring, admitting, leasing and selling policies are
non-discriminatory, the social mix of a workforce, students or housing society
will roughly reflect that of the society itself. Since this is not the case, positive
action is needed. The second expert group, chaired by Amitabh Kundu submitted
report in June 2008 to “propose ‘diversity index’ and to work out the
modalities for implementation”. The Kundu report recognised that the Sachar
report’s impact would be wider than its principal objective. While the Kundu
report discussed in this section is more directly concerned with the
representation of various groups in the workforce, anti-discrimination
legislations definitely augment other measures to encourage diversity. But the
latter have their main value in promoting a national culture that is intolerant
of unfair discrimination. This battle of minds is perhaps more, if not as,
important as the battle of numbers. The Kundu report argues thus:
The case for increasing social diversity in
public spaces can be built on the notion of a fair demographic representation
for all groups of population. Groups that are subjected to discrimination in
society tend to get under-represented (as compared to their proportion in the
population) in several public spheres. This leads to inequity and alienation
resulting in resentment and frustration among the excluded population. These
could assume violent and secessionist expressions, leading to disruption in
social and political life, with serious negative consequences for growth,
development and social harmony...
There are numerous cases when the individual characteristics
have been rendered either secondary or completely redundant in determining
her/his access to these institutions as group identities overwhelm or dictate
the decision-making process.
Diversity, although linked to discrimination, is
an independent concept. As the Kundu report emphasises, its main concern is the
“Concentration or clustering of populations with similar socio-economic,
religious and ethnic characteristics in geographical, social, political and
institutional spaces...” A concentration of minority groups in a public space
is as regrettable as that of a majority group. As such, diversity transcends
the majority-minority divide.
The Kundu report does not restrict the
sensitivity of diversity to religion alone. The report recommends a
diversity-index which is sensitive to caste, religion as well as sex in a given
public space. It calculates the “diversity gap” in a public space by comparing
the actual intake of members of a particular religious, caste or gender group
in a given institution to the “population who are eligible to enter the
institution” and not to the general population.
While admitting that a low number of eligible members itself
may be a result of discrimination, the report justifies this as a pragmatic
compromise because “an individual institution has limited role to play in
changing that”.
The diversity gap is designed to ensure that
only social exclusion is corrected – so, only if a community is
under-represented in proportion to its eligible population will the institution
be rewarded for enhancing its participation. If a community (even if a
minority) is already over-represented in a given institution, it cannot claim
any benefits.
Once diversity gap has been identified in an
institution, the report recommends that those institutions which take measures
to bridge the gap should be rewarded by the state with incentives, concessions,
access to public land and resources, tenders, export quotas, preferences,
advertisements, etc; while those institutions that ignore the diversity gap are
not punished but do not get the benefits either.
The report identifies three sectors to push for diversity –
education, employment and housing. It recommends:
1. Incentives in the form
of larger grants to those educational institutions that have higher diversity
and are able to sustain it over time. These incentives can apply to both
colleges and universities, both in public and private sector.
2. Incentives to provide
the public and private sector enterprises and institutions to encourage
diversity in their workforce. While such initiatives should be part of the
corporate social responsibility, some affirmative action may help initiate this
process.
3. Incentives to builders
for housing complexes that have more “diverse” resident populations to promote
“composite living spaces” for “socio-religious communities”.
Thus, the implementation scheme is based only on
carrots, not sticks. The concept has been employed in various other countries.
In a recent book entitled Buying Social Justice Christopher McCrudden (2007)
draws on jurisdictions as diverse as the US, Malaysia, the European Union,
Canada and South Africa to provide an excellent empirical analysis of the way
in which they have tried to balance private freedom with social goals, by
“buying” social justice. Instead of relying on their “imperium” (power of
sanction), these jurisdictions have relied on their “dominium” (power of purse)
to achieve social justice goals. The idea is an intelligent compromise between
entrepreneurial freedom and social justice, and is a useful one to try out in
India.
The report suggests that “this approach has
greater flexibility than the system of reservations. The diversity-based
incentive system, first and foremost, creates awareness. It sets the goal
towards which the institutions would work, and while these goals may not be
achievable immediately, institutions must try and achieve them gradually,
within a reasonable period of time.” It further argues that reservations might
make sense in “certain specific situations” but the diversity approach is “a
more effective and, we hope, a more acceptable solution” for “long term...
systemic change”.
2 Prohibiting Discrimination
The second expert group, chaired by Madhava
Menon, was asked to “examine and determine the structure of an Equal
Opportunity Commission”. It submitted its report in February this year.
The main focus of the EOC proposed by the Menon
report will be to weed out discrimination against members from “deprived
groups” identified by an objective deprivation index, and defined by “sex,
caste, language, religion, disability, descent, place of birth, residence, race
or any other...” ground. Thus, the eligibility requirement for protection by
the proposed law is deprivation based on an open-ended list of irrelevant
personal characteristics.
The final residual clause “or any other” is a
place-holder for other analogous autonomy-infringing grounds that may be filled
in later. Although this foresight is commendable, it will be a good idea to
expand the list to include currently known analogous grounds like “sexual
orientation, marital status, food preference, age, dress preference, gender identity,
pregnancy”, etc, while still retaining the residual clause.
The proposed bill in the Menon report also recognises that
deprivation is contingent. What is today a deprived group may not be so tomorrow.
Protection will be dependent not on the much maligned “vote-bank politics” but
on a principled demonstration of deprivation through the deprivation index.
Further, the bill recognises our multiple identities by moving away from a
focus on single interest groups and instead arriving at the generic idea of
“deprived groups”.
One may be rich, male and able, but a Muslim religious
identity may result in being discriminated against nonetheless. Again, a dalit
lesbian woman carries several depriving identities, the totality of which
cannot be captured by a single issue oriented law.
This design is not only morally better but also
has a more universal appeal –with the rich and complex diversity of human
identities, most of us are more likely to see ourselves as potential victims of
illegitimate discrimination rather than as perpetual non-beneficiaries. This
raises the possibility of empathy with victims of discrimination rather than
empathy failure caused by divisions between us-and-them.
In its potential impact, the Menon report is the
least ambitious of the three suggestions being discussed here. It only goes so
far as imposing a negative obligation on public as well as private bodies:
refrain from discriminating unfairly. There is no positive requirement to do
good. This is what makes it possible to have a long list of beneficiaries –
unfair discrimination against anyone is wrong. But it is particularly wrong
against a member of a deprived group, because by definition they have few
opportunities available to begin with.
The Menon committee is, correctly, “of the firm
opinion that the jurisdiction of this Commission should not be limited to the
public sector”. Yet, citing incremental sectoral progress, it suggests that
only employment and education should be the initial focus of the EOC. The
deferment of its application to the housing sector to a later date is
unfortunate, given rampant discrimination on the grounds of religion, caste,
food preference and marital status existing in that sector.
To what extent anti-discrimination legislations can help
eradicate structural injustice in the short-term is debatable. Driven as they
usually are by complaints from victims, even a very effective enforcement
mechanism can only be expected to deal with only a limited percentage of
existing discrimination in society and that too after the discrimination has
taken place. This has been addressed to a limited extent by the Menon report
which seeks to grant a broad policymaking role to the proposed EOC.
Implementation and Monitoring
The Central Government has developed administrative mechanisms
for regulating , monitoring and implementing the reservation policy and other
affiliated programmes. These institutions can be divided into:
(a) Ones that are directly involved in regulation (i.e.
preparing rules relating to reservation from time to time) and monitoring the
fulfillment of the required quotas in the central government services,
(b) Those acting as investigative agencies in the event of
violation of reservation rules, and
(c) Those that are concerned with policymaking and overseeing
the overall development of the SC/STs.
.1 Department of Personnel and Training
The Department of Personal and Training (DOPT) is the division located
in the Ministry of Personnel, Public Grievance and Pension. It regulates and
monitors the reservation policy in government services. Its main function is to
enforce or modify the rules, as well as, monitor the fulfillment of quotas as
per given rules in central government services. Each ministry and government
supported organization has an administrative unit known as the ‘SC/ST Cell’
with liaison officers responsible for ensuring that instructions with regard to
the implementation of reservation policy are strictly complied with. The DOPT
through the administrative heads of the ministries and organizations, monitor
and regulate reservations at the central level.
.2 National Commission for Scheduled Castes and Schedule Tribes
The other important independent organization is the National
Commission for SC and ST. It functions as the investigating agency on
specific complaints from SC/ST employees regarding service and promotion
matters. The matters may be related to incidences of discrimination,
violation of reservation policy, etc. The Commission has the power of
functioning as a Civil Court and has the authority to summon an employer for
enquiry and action. The Commission also oversees the development of
SC/STs, prepares report about their progress annually, which is accordingly,
discussed in the Parliament.
.3 Committee of Parliament on Welfare of Scheduled Castes
and Scheduled Tribes
Committee of Parliament on Welfare of SCs /STs is another body
(comprising of SC/ST Members of Parliament) entrusted with the task of
examining the progress regarding the representation of SC/STs. It attempts to
make suitable recommendations for effective implementation of policies and
programmes.
.4 Ministry Social Justice and Empowerment and Ministry of
Tribal Affairs
At the policy framing level are the Ministry of Social Justice
and Empowerment, Ministry of Tribal Affair and Committee of Parliament on
Welfare of SCs/STs. The Ministries are the nodal bodies which oversee the task
for the development of the SC/STs. The ministries are responsible for the
overall development of the SC/ST population. They carry out various schemes
related to education, and economic development.
.5 Planning Commission, Backward Caste Division
The Ministry of Social Justice and Empowerment and the Ministry
of Tribal Affairs work in close collaboration with the Planning Commission (PC)
of India; the PC has a special Backward Caste Division that oversees the work
of economic planning related to regulation and implementation of the reservation
policy.
To begin with the employment sector, there has been a striking
increase in the numbers of SC/ST government employees. In 1960, there were 2,18,000
SC employees which increased to 6,41,000 in 1991 and 5,40,000 in 2003. The
corresponding increase in the percentage of SC employees to total government
employees increased from 12 per cent in 1956 to about 16 per cent in 2003 –
fairly proportionate to their percentage share in population. In the case of
ST, the numbers increased from about 3,80,000 in 1960 to 2,03,000 in 1991 and
further up to 2,11,000 in 2003; a corresponding increase in percentage from 2
per cent in 1960 to 6 per cent in 2003. Similarly, the number of employees in
public sector undertaking has increased from 40,000 in 1970 to 2,96,000 in 2003
for SC and from 12,000 to 1,38,000 for ST during the respective years. In case
of nationalized banks, the number has increased from 4,000 in 1972 to 1,43,000
in 2000 for SC and from 400 to 43,000 for ST during the same period. The
corresponding percentage has increased from 1.89 to 13.32 per cent for SC and
from 00.19 per cent to 4 per cent for ST. Similarly, the number of SC employees
in nationalized banks increased from 55,000 in 1978 (10 per cent) to l,33,000
in 2004 (17 per cent) and for ST the number increased from 8,000 (1.5 per cent)
to 44,000 (5.72 per cent). In public insurance companies the number of SC
employees increased from 14thousands in 1993 (14 per cent) to 20 thousands (16
per cent) in 2000. The number of ST employees increased from 5,000 (5 per cent)
to 8,000 (6 per cent) during the same period. If we take the total number of
employees in three services – government, public sector undertaking and public
sector banks – we will notice that the number of employees in these three
services has increased from 7,88,000 to 9,10,000 for SCs and from 2,45,000 to
3,69,000 for STs during the period, 1978-2004. The percentage of total employees
also improved between 1978 and 2004; from 15 per cent to 17 per cent in the
case of SCs and from 4.7 per cent to 6.9 per cent in the case of STs.
In the case of admission in educational institutions, the
availability of assessments about the impact of reservation in higher education
is limited.
The limited evidence indicates that the student enrolment has
increased under reservation. In 1981, one estimate put the proportion of
graduate students around 3.3 per cent for SCs and 0.8 per cent for STs – which
is highly disproportionate to the actual population share of SC/STs. By the
late 1990’s, the proportion of SC students to the total number of students
enrolled rose to 7.8 per cent and for the STs, it rose to 2.7 per cent. This is
nevertheless low if we look at the actual share of the SC/ST population to the
total population – 16 per cent and 8 per cent respectively. Hence, it is
difficult to estimate how many SC/ST students have benefited by the reservation
policy. One estimate indicates that in 1996/97, roughly 5,10,000 SC students
and 1,80,000 ST students were enrolled. Of these, roughly about 2,00,000
students from both the categories may have been enrolled in desirable
programmes in higher education where reservation matters. Weisskopf (2005)
estimates conclude that about a third of SC/ST students enrolled in
universities were pursuing higher education in desirable programmes because of
the reservation policy. This implies that out of the approximately 7,00,000
SC/ST students attending universities, only a portion of them are enrolled into
programmes of their choice; SC/STs obtain a much lower share in preferred
institutions. In many cases, despite reservation being the norm, it is accepted
only in theory and defies implementation of any sorts. Therefore, there is a
substantial amount of catching up to do in order to reach the required level of
16 per cent and 8 per cent reservation for SC/STs.
The constitutional provisions for reservation in public sector
employment and educational institutions are mere authorizations
empowering the State to make special provisions in favour of
discriminated groups. But, the legislative reservations are specifically
provided in the Constitution itself. the “structural constraints imposed
by the arrangement for reserved seats or the method of election under
reservation” (Galanter, 1991). Often, a legislator elected through
reserved seat, especially a SC, is responsible to and dependent upon a
constituency made up overwhelmingly of non-members (or high caste
members). To the extent that the legislator is dependent on high caste
vote and is thus, obliged to support them; thus a SC legislative
candidate suffers from the limitation of not being able to
represent fully the interests of SC/STs, who themselves happen
to be a minority in most of the reserved constituencies. This arrangement acts
as a filter in keeping the divergent interests of these groups from unifying
and checks direct and forceful expression of their grievances and interests.
.4 Reservation in Private Sector – Affirmative Action Policy
One of the general qualms about public sector reservation policy
in employment and admission to educational Institutions is that it applies to a
tiny government and government supported sectors and excludes a large private
sector. For instance, in employment, the reservation policy excludes private
employment where more than 90 per cent of the SC/ST workforce is engaged; with
the result that there is lack of protection against practices of exclusion and
discrimination in the private sector. There is notable exclusion in the
following sectors – private industrial, services and agricultural. Similarly,
the entire private owned educational institutions are excluded from the
provision of reservation policy. It is only after the introduction of policy of
privatization and back-door de reservation of government employment in the
early 1990sthat the demand for reservation in private sector has picked up. And
at present, the Government has set up Group of Ministers to develop a consensus
between the Government and the private sector for adoption of Affirmative
Action Policy for private sector. The informal type of affirmative action
policy in the private sector, with a group target approach, has helped the SC/STs
to some extent. However, the net gains are limited in nature since the
disparities between the SC/STs and the non-SC/STs, with respect to the main
indicators of human development, continue. It is rather difficult to
disaggregate the impact of informal affirmative action policy, as well as, of
formal reservation policy, on the human development of SC/STs.
.5 Human Development of the Scheduled Castes and Scheduled
Tribes
It is possible to look at
some of the indicators of human development in order to capture the aggregate
impact of formal and informal affirmative action policies, as well as, the
general economic and social development trends. Over time, there has been a
positive improvement in the human development of SC/STs. The positive changes
are reflected in the aggregate indicators of human development – income level,
employment, social needs like education and health, and ultimately, in poverty.
At this juncture upon the conclusion it is followed that the
constitutional goal of substantive equality also cannot be totally sacked.
Upliftment of the status of the depressed class is also need. With the
unprecedented growth of private sector role in whole economy it is a bounden
duty of the State to explore in one form or other scope of affirmative action
in private sectors enterprises. Since the present method of reservation has
become redundant if applied to the private sector, in order to explore other
avenues the government recently appointed the Sachar Committee. Though the
mandate of the committee was to look into the social, educational and economic
status of a particular religious minority, yet it has also gone in detail about
the examination of merits and demerits of present system of affirmative action.
The Committee recommended for creation of an Equal Opportunity Commission and
enhancement of diversity in public spaces by creating a diversity index to
promote incentives to those who enhance diversity in their workforce.
Both these recommendations can be seen in larger perspective
to appreciate the advantage of this proposal over the existing formula of
affirmative action. Upon these recommendations two expert groups were formed.
The first among them, headed by head of ISI, Kolkatta, came up with few
suitable formulas which can be applied in enhancing the diversity in public
spaces and particularly in private sector. When promotion of diversity will be
clubbed with the incentives in the form of tax incentives, soft bank loans,
land on lower cost etc., which may accrue to the employer enhancing diversity
in workforce it would certainly push the private sector to employ more of the
depressed class including STs/SCs/OBCs/Women/Disable persons etc., as it would
be economically beneficial to the employer.
The second Expert Group on modalities and framework of the
Equal Opportunity Commission Expert Group headed by Madhava Menon has suggested a Bill namely, “The Equal Opportunity
Commission Bill, 2008” which under its Preamble gives the objectives for which
the Equal Opportunity Commission is proposed to be constituted, viz.:
“Whereas the constitution of India in its
Preamble promises to secure to all its citizens EQUALITY OF STATUS AND OF
OPPORTUNITY and
1. directs the State [Article 38(2)] to
strive to minimize the inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not only among
individuals but also amongst groups of people residing in different areas or
engaged in different vocations,
2. mandates the State [Article 41] to
make effective provisions for securing the right to work, to education and to
public assistance in cases of unemployment, old age, sickness and disablement,
and in other cases of\undeserved want, and
3. imposes a positive duty
[Article 46] to promote with special care the educational and economic
interests of the weaker sections of the people in order to protect them from
social injustice and all forms of exploitation”;
Thus the preamble of the Bill clearly shows the pious object
of fulfilling the Constitutional obligations in respect of advancement of
educational and economic interest of weaker class and to protect from all forms
of exploitation.
Under the Bill “Deprived group” means a group of
persons who find themselves disadvantaged or lacking in opportunities for
reasons beyond their control or suffer from impaired ability to make good
existing opportunities to access rights and entitlements available under law or
schemes of the government. While “Equality of
Opportunity” defined to mean existence of conditions which would enable the
disadvantaged to overcome the disabilities in accessing rights and entitlements
like other groups, whether similarly placed or not. As per the Bill “Denial
of Equal Opportunity” to mean any action, conduct or measures resulting in or
is likely to result in discrimination or deprivation, and includes any action
taking away in any manner existing opportunities for livelihood, vocation,
occupation or employment or any other livelihood rights and entitlements.
The Bill defines “Discrimination” in most
extensive terms to include any distinction, exclusion or restriction made on
the basis of sex, caste, language, religion, disability, descent, place of
birth, residence, race or any other which results in less favourable treatment
which is unjustified or has the effect of impairing or nullifying the
recognition, enjoyment or exercise of equality of opportunity, but does not
include favourable treatment given in fulfillment of constitutional obligations
towards Scheduled Castes, Scheduled Tribes, backward classes, women and
children. Discrimination includes direct and indirect discrimination. ‘Direct
discrimination’ occurs when a person intentionally or with knowledge violates
the principle of equality guaranteed by the Constitution. Any other
discrimination which has the effect of impairing or nullifying the exercise of
equality of opportunity or which results in less favourable treatment will be
as per the Bill deemed to be ‘indirect discrimination’.
The Bill proposes to implement equality of
opportunity through a “Deprivation Index” which as per Bill means the formula
or scheme by which the Commission would identify the “deprived groups”. These
may vary according to the sectors and regions surveyed in relation to the equal
opportunity situation. There may be different levels of deprivation as well.
The formula or scheme thus evolved may employ indicators legally recognized in
the past for determining social and economic backwardness and may include other
factors found relevant by the Commission. It may assign weighted scores to
various indicators in order to evolve an index of deprivation, which it
considers fair to all concerned. The Deprivation Index thus worked out together
with the basis of such calculation may be notified by the Commission. It may
modify it if found necessary after proper notice.
Discrimination against any citizen on grounds only of
religion, race, caste, sex or place of birth is expressly forbidden by the
Constitution itself. Arbitrariness is against the spirit of equal opportunity.
There is therefore no need for a separate anti-discrimination law to afford
equal opportunity to citizens against the State or State-sanctioned private
enterprises.
The provision with regard to the constitution of
the EOC has been provided under section 4 of the Bill. The duty to constitute
EOC has been imposed upon Central Govt. which shall comprise of Chairman, two
full time and four part time members. Besides the Regional EOC Chairman will be
ex officio member of the EOC. The Chapter III of the proposed Bill deals with the Regional
Equal Opportunity Commissions while under chapter IV, their jurisdiction,
function and powers have been given. Under section 22 it has been provided that
the EOC shall jurisdiction upon the complaints of deprived groups who have been denied or
who claim to have been denied equal opportunities by government, public and
private bodies, and in particular with reference to:
(a) Access to employment including self-employment and
conditions thereof.
(b) Access to education including primary, secondary,
tertiary, special education, professional and vocational, and conditions
thereof.
(c) Such other areas which the appropriate Government may decide
and request the Commission to include in its jurisdiction.
The EOC may assume jurisdiction on any of above
cases sue motto or on any complaint or representation by an individual or a
group or by reference to it by the Central or State Government or a statutory
body under government or by a competent Court seized of the matter.
Provided in the case of a complaint from an individual the
complaint manifests a group dimension, that is to say that it is not an
isolated incident affecting one individual and is a practice that may
constitute discrimination or denial of equality of opportunity.
The functions of the proposed EOC would be to
assist deprived groups in securing equal opportunities through suitable schemes
or legislation. For that purpose it would function to work towards ensuring the
elimination of all forms of discrimination and denial of equal opportunities in
all walks of life, and investigate into matters inequality and propose remedial
measures. Its functions also include evaluation of attainment of equal
opportunity, to mediate, conciliate and settle disputes relating to
discrimination and denial of equality of opportunity and many other similar
functions.
Chapter V deals with
the procedure for investigation, inquiry and review and Chapter VI with orders,
directives and their enforcement. Chapter VII has the theme of finance,
accounts and audit of the accounts of EOC.
Reservation has become a controversial issue these days
owing to politicization of this issue in India. Apart from this, the dwindling
condition of government jobs with the advent of globalization, liberalization
and privatization has aggravated the condition. Actually, the policy of
reservation can be reaped and utilized only in government sector. But a big
question has arisen that what would happen when there would be no scope of
getting jobs in case of lack of government jobs. Because the governments
opportunities are shrinking due to heavy disinvestment policy pursued by the
State. This issue has in turn given rise to issue of providing reservation in
private sector. But private sectors have been adamant to eschew introduction of
this defective policy in their domain. Their contention is that reservation is
based on anti-merit policy, and that is why it would badly affect the quality
and credit of their working.
This is a stark reality that jobs in government sector is
decreasing but only this reasoning cannot be a convincing ground for
introducing reservation policy in private sector. A pertinent question in this
juncture arises that what was the main reason behind privatizing any sector.
The easy answer to this would be to maintain quality and bring sharpness in the
sector which was lacking in case it was government owned and regulated.
Therefore it is humbly suggested in the line of the proposal of private sector
that the stakeholders of reservation can be given some sort of monetary or
pre-joining training by these sectors rather than taking them directly in the
garb of reservation or so called affirmative action.
Further, it is argued that the vacuum created by closing of
government sectors has taken away all hopes of the claimants of reservation to
get a government job and mingling themselves in the mainstream of society. In
response to this argument it can be said that the need of hour is to make a
more feasible policy to strike a balance between the interest of claimants and
the interests of private sectors. This will truly help in securing the goals of
constitution and the interests of private sectors.
Another related finding is that the Constitution
was framed in way back in 1950s and it was guided only by the ethos of
communism and socialism and did not ever considered capitalism as basis of the
framework which was devised. Therefore the provisions of the Constitution were
reflection of socialistic pattern of society in which maximum benefit to
maximum number was the guiding principle. Ultimately with 42nd
Amendment the socialism became one of the basic features of the Constitution.
Therefore the constitutional provisions which framed for the inclusive
development of the country are now found to be worthless in the present era of
globalization, liberalization and privatization.
Apart from that the private sector would also suffer from
the discrepancies and demerits existing in the present formula. Therefore it
would also suffer from the inefficiency, lethargicity, red-tappism, corruption
resulting into low productivity ultimately failure of the enterprise as we have
seen in the past in respect of public sector enterprises. Besides the political
motives would always play a determinant role in any action taken by the private
employer against the delinquent or inefficient employee availing reservation.
All this brings us to an irresistible conclusion that the
present framework of constitution or law reservation in private sector
employment in present form is constitutionally invalid.
The discussion upon the three recent committees and their
recommendations clearly shows that it is no more feasible to continue the
backward looking affirmative action scheme as it has failed to deliver the
expected results and hence the second affirmative action scheme could be more
effective in achieving the goals of social and substantive equality. At the
first this scheme can been applied at an experimental basis in the private
sector and if found to be more suitable to the present scheme it could also
applied in the public and government sector employments.
In spite of the good effort of the Menon group the
implementation aspect suffers from certain lacunae. In place of various
existing commissions for ST/SC/OBC/Women/ Disabled persons one EOC could cover
the area of coverage by these numerous commissions.
Still it is commendable that the voices of dissidents of the
present reservation policy has now been officiated
by these three committees/expert groups. The proposal if applied in private
sector, it would neither create much of euphoria as direct benefit of
enhancement of diversity will be a motivational factor for the private sector
enterprises while the negative requirement against discrimination on irrelevant
grounds would ensure that the eligible aspirants from the depressed and
vulnerable class of citizens are not discriminated and afforded an equal
opportunity of employment.
