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A SOCIO-LEGAL STUDY OF
RESERVATION IN INDIA WITH SPECIAL REFERENCE TO HUMAN RIGHTS
Aarti
Research Scholar (Law)
G.D Goenka University, Sohna, Haryana, India
Abstract-
Reservation as a
concept is very wide. Different people understand reservation to mean different
things. One view of reservation as a generic concept is that reservation is an
anti-poverty measure. There is a different view which says that reservations are
merely providing a right of access and that it is not a right to redressal.[1] In
Constitution of India it states that Article 15 (which prohibits discrimination
on the basis of religion, race, caste, sex, place of birth) and article 16
(equality of opportunity) to insert new clauses that allow the government to
make “special provision for the advancement of any economically weaker sections
of citizen” other than SC/STs and OBCs.
In the international
human rights context, the State may modify their obligations under
international human rights treaties by entering reservations. Reservations are
a particularly technical area of international law, but the study of this
rather dry in the context of international human rights law is enlightening.
According to the Vienna Convention on the Law of Treaties VCLT, reservation is
“a unilateral statement… made by a state, when signing, ratifying, accepting,
approving or acceding to a treaty, where, it purports to exclude or modify the
legal effect of certain provisions of the treaty. The aim of a reservation is
to limit a state’s obligations under a particular treaty. International Law is
not formalistic ‘general political statement’ or a ‘declaration of
interpretation’. States have availed themselves broadly of the possibility of
reservations, both quantitatively and qualitatively.
There is no doubt that
the reservation is problematic for international human rights law. Human rights
are clearly more of a ‘package’ that most international normative instrument.
Reservations also create problems legal certainty, making it difficult for
individuals to ascertain the exact scope of the rights they have been
guaranteed. In fact, international human rights law has also evolved specific
notions of what reservations are permissible, who may decide on their
permissibility, and what consequences flow from reservations.[2]
Keyword:
Reservation of SC/STs and OBCs, Human Rights, After independence.
Introduction-
The reservation system
in India dates back to 2nd century B.C. where the upper classed
enjoyed certain privileges. According to some texts several centuries later
during the Gupta period, Brahmins were given certain facilities that the other
Varans were denied.[3]
Before
independence- the British Raj introduced elements of reservation in the
Government on India Act, 1909 and there were many measures put in place prior
to independence. In 1933 it was introduced when the Prime Minister of Britain,
Ramsay Macdonald, proposed the Communal Award, according to which separate
representation was to be provided for Muslims, Sikh, Indian Christians,
Anglo-Indians, Europeans, and Dalits.[4]
This
system was opposed by the Mahatma Gandhi who fasted in protest against it. But
many minorities and leaders like B.R. Ambedkar supported it. After long
negotiations, Gandhi and Ambedkar signed ‘Poona Pact’ where it was decided that
there would be a single Hindu electorate with certain reservation in it.[5] In
1942 Viceroy’s Executive council recommends 8.5% reservation for the SCs in
civil services and B.R. Ambedkar was a member of the council.
After
independence- In 1950 Indian constitution committed to reservation for SCs and
STs. A government converts (except four Sikh Dalit castes) but by 1990s, Sikh
and Buddhist castes were included, but Christian and Muslim Dalits are remain
excluded.[6] In
1979 a significant change has begun when the Mandal Commission was established
to assess the situation of the social and educationally backward classes.[7] In
1990 Mandal Commission report recommending 27% reservation to OBCs implemented
by Prime Minister VP Singh. In 1992 Supreme Court orders 50% cap on the
caste-based reservation and also strikes down Narsimha Rao government’s move to
reserve 10% government jobs for poor among upper castes. “Economic condition
not a criteria for reservation.” In 2019 Parliament passes Article 15 amendment
bill, 2019 allowing 10% quota in educational institutions and government jobs
for economically weaker sections in general category.[8]
What
is Reservation meaning and definition?
The word ‘reservation’
can be defined as an act of reserving or keeping back or holding something. It
is a kind of process to provide facilities to the people belonging to the
weaker sections of the societies in the areas of education, jobs, scholarship
and government service, and others. The reservation system is under the control
of constitutional laws, statutory codes, local rules and regulations.
In India, this system
is also known as the ‘Quota System’ meant for the people attached to the
reserved category. It has been implemented to uplift such people coming from
the socially and economically weaker sections like SC, ST, OBC, and other
similar classes. The framers of the constitution believed that due to the caste
system, these sections were historically oppressed, denied respect and equal
opportunity in the Indian society and were hence under-represented in the
nation-building activities.
In other words,
reservation is a form of Affirmative Action whereby a certain percentage of seats
are reserved in the Parliament, State Legislative Assembly, Central, and State
Services, Public sectors units and in all private and public Educational
Institutions except in the minority and religious educational institutions for
the reserved categories. The constitutional of India provide the 3 types of
reservation in India i.e. Political, Educational, Employment, and the
percentage has been fixed by them.[9]
RESERVATION
TO HUMAN RIGHTS –
The Vienna Convention
on the Law of Treaties (VCLT) defines a treaty to mean, “an international
agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more
related instrument and whatever its particular designation”.[10]
According to the VCLT,
reservation is “a unilateral statement… made by a state, when signing,
ratifying, accepting, approving or acceding to a treaty, where, it purports to
exclude or modify the legal effect of certain provisions of the treaty.”[11]
Part two of section two of the VCLT
deals with the rules on the reservation, and has become the most elaborate
system of reservations in international law.[12]
It also contains lex generalise on
the reservation.[13]
Reservation is made by
states make upon rectification of international treaties. Under article 19-21
of the VCLT[14]
allows states to enter reservation unless there are refused by the other states
and country to the objective of the treaty in question. In its “General
Comments No. 24”[15],
the Human Rights Committee argued in 1994 that the provisions of the Vienna
Convention cannot be applied to the Human Rights Treaties because-
·
HRT does not regulate the relations
between states but guarantee the rights of the individual vis-à-vis the state.
States should therefore not to be allowed to rule on the validity of the
reservation, but treaty bodies.
·
Human Rights are closely inter-related.
Reservation to individual’s rights would impact the structure of the treaty,
and unhinge its objectives.[16]
The only condition for a valid
reservation to be made is to pass a two-stage test, which first analysis the
permissibility of the reservation (article-19 VC) and then the opposability by
the other states to it (article 20 &21).
Inadequacy
of the regime in governing reservation to human rights treaties-[17]
The most important
defect in applying these provisions of VCLT to the reservation to human rights
treaties relates to the consequence of an objection vis-à-vis the validity of
the reservation. That the State have to either accept the reservation or preclude
the entry into force of the treaty with the reserving state cannot be the only
options available to a state in the case of human rights treaties, for they do
not envisage a bilateral relationship between the states bur reflect community
interests and choosing either of these options is not going to serve the
purpose of these treaties.
International
Law Commission Draft Guidelines on Reservations to Treaties-
The International Law
Commission to develop guidelines on ‘Reservation to Treaties’ the 14 report of
which has been submitted by special Rapporteur Prof. Alain Pellet Part III of
the Guidelines lay down the criteria for the substantive validity and the
consequences of invalidity of reservations:[18]
[19]In
the 1st guideline 3.3.1 ‘consequences of non- permissible
reservation’: ‘A reservation formulated notwithstanding a prohibition arising
from the provision of the treaty or notwithstanding its incompatibility with
the object and the purpose of the treaty is impermissible, without there being
any need to distinguish between the consequences of these grounds for non-
permissibility.’
2nd
guideline 3.3.2 ‘Non- permissibility of reservation and international
responsibility’: ‘The formulation of an impermissible reservation produces its
consequences pursuant to the law of treaties and does not engage the
international responsibility of the state or international organization which
has formulated it.’
3rd guideline 3.3.3 ‘Absence
of effect of individual acceptance of a reservation on the permissibility of
the reservation’: ‘Acceptance of an impermissible reservation by a Contracting
State or by a contracting organization shall not affect the impermissibility of
the reservation.’
Fourthly and perhaps
most important, the ILC has taken up the issue of the consequences of all types
of reservation, ‘Nullity of an invalid reservation’: A reservation that does
not meet the conditions of formal validity and permissibility. In other words,
for the first time, it clearly spells out that the consequences of invalid and impermissible
reservations are that they are devoid of any legal effects, i.e., they are null
and void.
Finally, the work of
the ILC has, as always, included part of the progressive development of
international law, which is reflected in guidelines 4.5.3 entitled Status of
the author of an invalid reservation in relation to the treaty.
Comparative
study of reservation system in India, U.S.A, Canada, and Japan-[20]
India-
In the Constitution of India-
It specifically amends
Article 15 (which prohibits discrimination on the basis of religion, race,
caste, sex, place of birth) and article 16 (equality of opportunity) to insert
new clauses that allow the government to make “special provision for the advancement
of any economically weaker sections of citizen” other than SC/STs and OBCs. [21]
Article 16(4) of the
Constitution enables the provision of reservation tothe backward class of
citizens, who are not adequately represented in the State. Reservation is provided
to Scheduled Castes (SCs), Scheduled Tribes (STs) and other backward classes
(OBCs), in case of direct recruitment on the all-India basis by open
competition.
|
Reservation category |
Reservation Quota (%) |
|
ST |
7.5% |
|
SC |
15% |
|
OBC |
27% |
|
EWS |
10% |
|
Total |
59.50% |
In
the case of direct recruitment on all-India basis otherwise, than by open
competition, the percentage fixed is 16.6%, 7.5%, and 25.84%, respectively.[22]
The
United States of America-[23]
Affirmative actions: it
provide employment equality and proper representation in education to Black,
Hispanic and American Indian (Native tribal) further this policy also applies
to private sector where the US government suggests that “when a private company
sells more than $50,000 workers, it must develop a written affirmative action
plan or AAP.”
Preventive measures: Discrimination on
the basis of color, creed, religion or place of birth of an individual is
unlawful.
Canada
Certain seats reserved
for Aboriginal Indians (Canadian tribal), women and physically disabled people
in the public sector and college. The allotments of seats whereas from 6% to
45% in various departments and it further changes state by State.
Atrocity Act: the tribal are prevented
by their properties and tradition. Further are given righteous in the land,
forest, and other natural resources.
Japan-
Buramukin and Koreans
are given first preference to government jobs and government suggests to have
at least 5% of burakumin and ethnic minorities to private companies which have
more than 500 employees further government provides low rate personal loans,
free education to any school or college, and some relief in taxes.[24]
Advantages
and Disadvantages of Reservation in India-[25]
The system of
reservation in India consists of a series of measures, such as reserving access
to seats in the various legislature, government jobs, education. The
reservation is undertaken to address the historic oppression, inequality, and
discrimination, it is intended to realize the promise of equality enshrined in
the constitution.
Achievements
of Reservation Policy-
·
It is a Political necessity in India,
for giving due representation to all sections
·
Although reservation scheme does
undermine the equality of education still affirmative action has helped many if
not everyone from underprivileged and/or under-represented communities to grow
and occupy top positions in the world’s leading industries.
·
Reservation schemes are needed to
provide social justice to the most marginalized and underprivileged which is
their human right.
·
Meritocracy is meaningless without
equality, firs, all people must be brought to the same level, whether it
elevates a section or decelerates another, regardless of merit.
·
Reservations have only slowed down the
process of “Forward becoming richer and backward becoming poorer”.
Negative
fallouts of reservation policy-
·
Reservation is similar to internal
partition because in addition to being a form of ethnic discrimination, is also
builds walls against inter-caste and inter-faith marriages.
·
Reservations are the biggest enemy of
meritocracy by offering reservation through relaxed entry criteria, we are
promoting merit-based education system. Meritocracy should not be polluted by
injecting relaxation of entry barriers, rather should be encouraged by offering
financial aids to the underprivileged although deserving candidate only.
·
Affirmative action can be provided at a
more comprehensive level taking into various factors of exclusion such as
caste, economic, gender, etc. A comprehensive scheme of affirmative action
would be more beneficial than reservations in addressing concerns of social
justice.
·
Poor people from “forward castes” do not have
any social or economic advantage over rich people from a backward caste. In
such a case, discriminating against the “forward caste” goes counter to the
logic of reservation. [26]
Some
important case laws are as follows:
Indra
Sawhney v. Union of India, 1993-[27]
This case is also
commonly referred to as the Mandal Commission case. The Hon’ble Supreme Court
itself in its landmark 1993 judgment, capped caste-based reservations at 50%,
ruling that “no provision of reservation or preference can be so vigorously
pursued as to destroy the very concept of equality,” and that under the
constitutional scheme of reservation economic backwardness alone could not be a
criterion.[28]
But as recently the
Union Cabinet approved the amendment bill 2019 124th Constitution
Amendment providing 10% reservation for “economically weaker sections” from the
general category of the population- primarily upper caste, now the total
reservation is 59.50%.[29]
It’s also has been challenged in the Supreme Court.
In
Unni Krishnan, J.P & Ots. v. State ofAndhra Pradesh & Ors.[30]
It was held that the
right to establish educational institutions can neither be a trade or business
nor can it be a profession within the meaning of Article 19(1) (g).
This was overruled in
T.M.A. Pai Foundation v. State of Karnataka (2002), P.A. Inamdar v. State of
Maharashtra 2005 Supreme Court ruled that reservation cannot be enforced on
Private Unaided educational institutions.
M.
Nagaraj & Ors. v. Union of India and Ors. 2006[31]
held the 77th amendment constitutional-
If the member from
reserved category gets selected in general category, his selection will not be
counted against the quota limit provided to his class and reserved category
candidates are entitled to compete for the general category post.
The reserved candidates are
entitled to compete with the general candidates for promotion to the general
post as per the roster and the reserved candidates should be adjusted in the
points earmarked in the roster to the reserved candidates.[32]
Suraj
Bhan Meena v. State of Rajasthan 2010-[33]
Held that, in view of
M.Nagraj & Ors. V. Union of India and Ors.2007, if the state wants to frame
rules with regard to reservation in promotions and consequential seniority it
has to satisfy itself with quantifiable data that there is backwardness,
inadequacy of representation in public employment and overall administrative
inefficiency and unless such an exercise and was undertaken by the state
government the rules in promotions and consequential seniority cannot be introduced.[34]
Conclusion-
In the light of
aforesaid, reservation plays a very important role in the context of Human
Rights, it can be concluded that human rights are product of natural law and
natural rights. Human rights are available to human beings with their birth
therefore they are called birthrights. They are inherent in all the individuals
irrespective of their caste, creed, race, language, culture, religion and
nationality.[35]
In the context of reservation, it’s the duty of the government to provide
equality of status and opportunity in India. Reservation is one of the tools
against social oppression and injustice against certain classes. Otherwise
known as affirmative action, reservation helps in uplifting backward classes.
However, reservation is just one of the methods like providing scholarships,
funds, education, jobs and other welfare schemes. The way the reservation is
implemented and executed in India is largely governed by vote bank politics.[36]
Reservation are
complex, particular if reservation turn out to be invalid. This matter raises
different problems for the treaty, Article 20(2) VCLT provides that only where
“it appears from the limited number of the negotiating states and the object
and purpose of a treaty that the application of the treaty in its entirety
between all the parties is an essentials condition of the consent of each one
to be bound by the treaty” do all state parties to a treaty need to accept a
reservation.[37]
**********************
[1] Dr.
Subhash C. Kashyap: Constitution of India: Universal Law Publishing 2nd
Edition 2015 Page no. 479.
[2] Daniel
Moeckli, Sangeeta Shah & Sandesh Sivakumaran: International Human Rights
Law: Oxford 2nd Edition 2010 Page no. 105.
[5]
Supra note 3 at
[7]
Supra note 4 at
[10] Article 2(a) of VCLT, 1969
enforcement date 27 January, 1980.
[11] Article
2(d) of the VCLT, 1969.
[12] Jean kyongun koh, Reservations
to Multilateral Treaties: how international legal doctrine note 18 pages 95.
Reflects world vision, 23 HARV. INT’L L.J.71, 71 (1982).
[13] Article 19 deals with the
formulation of reservation, Article 20 with acceptance of and objections to
reservations, Article 21 with the
legal effects of reservations and objections, Article 22 provides the rules for
the withdrawal of reservations and objections, and finally, Article 23 states
the procedural rules concerning reservations.
[14] Vienna convention on the law of
treaties (Vienna convention) (23 May, 1969, 1155 UNTS 331) ART1 (1) (a).
[16]
www.institut-fuer-menschenrechte.de
[17] www.lawteacher.net
[18] Super
note 18 at
[19] watermark.silverchair.com
[20] www.quora.com
[21] thewire.in
[22] www.indiatoday.in
[23] Supra
note 20 at
[24] Ibid
[25] digitallylearn.com
[26] Supra
note 25 at
[27] AIR 1993
SC 477.
[28] thewire.in
[29] www.news18.com
[30] AIR 1993
SC2178
[31] (2006) 8 SCC 212.
[32] abhijeetgautam.wordpress.com
[33] (2011) 1
SCC 467: AIR 2011 SC 874: 2011 AIR SCW 738
[34] Super
note 32 at
[35] Dr. Jai
S. Singh, Dr. V.P. Upadhaya: Expanding Horizons of Human Rights under the
Constitution of India: Ashok Law House, New Delhi: Edition 2017 Page no.2
[36] www.clearias.com
[37] Daniel
Moeckli, Sangeeta Shah & Sandesh Sivakumaran: International Human Rights
Law: Oxford 2nd Edition 2010 Page no.108
 G.D Goenka University, Sohna, Haryana, India | (Article by Aarti)){kind=link}
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