KLE Law Journal 51 INDIAN CONSTITUTION AND THE RESERVATION POLICIES IN INDIA: A REVIEW OF THE POSITION WITH SPECIAL REFERENCE TO THE OBC CREAMY LAYER CRITERIA Dr. Jyothi Vishwanath* Srinivas C. Palakonda** 1. Introduction “It is against the fundamental principles of humanity, it is against the dictates of reason that a man should, by reason of birth, be denied or given extra privileges.” – Mahatma Gandhi Burdened with the nightmares of the centuries of social discrimination rooted in the Indian social structure, evolving and ensuring reservation policies DV SDUW RI DI¿UPDWLYH DFWLRQ SRVWLQGHSHQGHQFH ZDV UHQGHUHG D FRQVWLWXWLRQDO and social necessity. For ameliorating and alleviating the grave sufferings of the underprivileged and the exploited sections of the Indian society, unique reservation policies are presently in force. Protective discrimination principles were woven into the Indian Constitutional fabric with an excogitated objective of reconstructing and transforming the hierarchical Indian society and building a society, egalitarian in nature, cherished with the values of individual achievements, individual development, individual involvement in the nation building, equal opportunity for DOODQGMXVWLFH3UHVHQWO\DI¿UPDWLYHDFWLRQDQGUHVHUYDWLRQDSSHDUVWREHWKHVROH tool, to eradicate the present and the continuing effects of the past discrimination against particular social segments in the country. $I¿UPDWLYHDFWLRQGHFLSKHUVLQ,QGLDLQWKHIRUPRITXRWDEDVHGUHVHUYDWLRQV in the three major and prominent areas viz., education, jobs and legislative bodies. ____________________________________________________________ * Assistant Professor of Law, P.G.Department of Studies in Law and University Law College, Bangalore University, Bengaluru. ** Assistant Professor of Law, K.L.E.Society’s S.A. Manvi Law College, Gadag. Published in Articles section of www.manupatra.com KLE Law Journal 52 In the absence of proper and tested alternatives and bearing in mind the nature of India’s social pulse, this triangular reservation policy appears to stay for the WLPHVWRFRPH7KHUHVHUYDWLRQORJLFKDVEHHQIXUWKHUUH¿QHGZLWKWKHLQWURGXFWLRQ of the OBC [Other Backward Classes] Creamy Layer Criteria for preventing the VWURQJHU2%&VIURPFRUQHULQJWKHTXRWDEHQH¿WVDQGIRUHQVXULQJWKDWWKHEHQH¿WV of reservation reach the neediest in the backward classes. At times the reservation SROLFLHVHQVXUHGXQGHU,QGLDQ&RQVWLWXWLRQKDYHFRPHLQFRQÀLFWZLWKWKHLVVXHVRI merit and competency. Amidst this scenario, this paper embarks on an academic journey of analysing WKHDI¿UPDWLYHDFWLRQSUHYDOHQWLQ,QGLD,WFRQFHSWXDOL]HVDI¿UPDWLYHDFWLRQDQG UHVHUYDWLRQH[DPLQHVWKHQHHGHYROXWLRQDQGWKHQDWXUHRIWKHEHQH¿FLDU\JURXSV triangular protection principles in the areas of job, education and legislative bodies. It also analyses the origin, logic, relevance and scope of the OBC Creamy Layer Criteria. Finally it attempts to draw jurisprudential deductions for balancing the FRQÀLFWLQJLQWHUHVWVHPHUJLQJGXHWRWKHUHVHUYDWLRQSROLFLHVLQWKHFRXQWU\ &RQFHSWXDOL]DWLRQ5HVHUYDWLRQDQG$I¿UPDWLYH$FWLRQ While addressing the graduating class at Howard University, President Johnson highlighted that civil rights alone cannot remedy discrimination thus: “You do not wipe away the scars of centuries by saying: ‘ now, you are free to go where you want, do as you desire and choose the leaders you please.’ You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race saying, ‘ you are free to compete with all the others’ and still justly believe you have been completely fair . This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity—not just legal equity but human ability—not just equality as a right and a theory but equality as a fact and as a result.” 1 3UHVLGHQW-RKQ).HQQHG\ZDVWKH¿UVWWRXWLOL]HWKHWHUPµDI¿UPDWLYHDFWLRQ¶ in Executive Order 10925 2 LQ WKH \HDU IRU HQVXULQJ DI¿UPDWLYH DFWLRQ E\ 1௘KWWSZZZLQIRSOHDVHFRPVSRWDI¿UPDWLYHWLPHOLQHKWPODFFHVVHG'HFHPEHUDWSP 2௘ Ibid signed on 6 March 1961, the Order created the Committee on Equal Employment Opportunity and mandated WKDWSURMHFWV¿QDQFHGZLWKIHGHUDOIXQGVWDNHDI¿UPDWLYHDFWLRQLQKLULQJDQGHPSOR\PHQWIUHHRIUDFLDOELDV Published in Articles section of www.manupatra.com KLE Law Journal 53 the government contractors in the employment of applicants and for treating employees without regard to their race, creed, colour or national origin. 3 $I¿UPDWLYHDFWLRQPHDQVHQIRUFLQJHTXDORSSRUWXQLW\ 4 It refers to a policy or programme seeking to redress past discrimination through active measures to ensure equal opportunity in education and employment, training for disadvantaged groups such as women, ethnic minorities etc. 5 $I¿UPDWLYH DFWLRQ RU SRVLWLYH discrimination, known as employment equity in Canada, reservation in India and Nepal and positive action in United Kingdom is the policy of favouring members of a disadvantaged group who have suffered discrimination within a culture/system. 6 $I¿UPDWLYHDFWLRQWHQGVWRSURWHFWSHRSOHIURPWKHSUHVHQWHIIHFWVVWHPPLQJIURP past discrimination. According to the New Webster Dictionary reservation means, “NHHSLQJDVLGHVRPHWKLQJIRUVRPHVSHFL¿FSXUSRVH ”7 Reservation refers to the act of reserving; keeping back or withholding. 8 0RVWO\FRQWURYHUVLDOLQQDWXUHDI¿UPDWLYHDFWLRQSROLFLHVSHUYDGHPRVWRIWKH countries in one or the other form including India. 9 Racial quotas, gender quotas, UHOLJLRXVDQGFDVWHTXRWDVUHLQDI¿UPDWLYHDFWLRQDOORYHUWKHJOREH 10 Rampant slavery 3௘7KLVH[HFXWLYHRUGHUUHDOL]HGWKHJRYHUQPHQW¶VLQWHQWWRFUHDWHHTXDORSSRUWXQLWLHVIRUDOOTXDOL¿HGSHRSOH It was eventually amended and superseded by Lyndon B. Johnson’s Executive Order 11246 which prevented discrimination based on race, colour, religion and national origin by organizations which received federal contracts and subcontracts. In 1967, Order was amended to include sex as well. -https://en.wikipedia.org/wiki/ $I¿UPDWLYHBDFWLRQBLQBWKHB8QLWHGB6WDWHV . 4௘ Ibid 5௘ZZZWKHIUHHGLFWLRQDU\FRPDI¿UPDWLYHDFWLRQ accessed 12 December 2015 at 6.03 p.m. ௘ KWWSVHQZLNLSHGLDRUJZLNL$I¿UPDWLYHBDFWLRQ accessed 20 October 2015 at 4.35 a.m. ௘ https://latasinha.wordpress.com/2011/08/11/policy-of-reservations-in-government-jobs/. 8௘ Supra Note 5 9௘,Q Barbara Grutter v. Lee Bollinger , et al. [539 U.S. 306], the US Supreme Court held that University of Michigan Law School admissions program that gave special consideration for being a certain racial minority did not violate the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964; %UD]LO0DOD\VLD6RXWK$IULFDDUHIHZRWKHUFRXQWULHVEDWWOLQJWKHDUJXPHQWVIRUDQGDJDLQVWDI¿UPDWLYHDFWLRQ in their countries. Refer for details KWWSZZZDOWHUQHWRUJVWRU\DI¿UPDWLYHBDFWLRQBLQBRWKHUBFRXQWULHV (Last visited on 01 September 2017 at 6.29 p.m.). 10 ௘ %UD]LO KDV 9HVWLEXODU i.e., a competitive examination conducted for selection of the students. Canada has Employment equity (Canada) which affects aboriginals and minorities. China reserves positions for ethnic minorities and women. Finland has quotas for Swedish speakers. Germany has quotas in their Gymnasium V\VWHP,VUDHOKDVDI¿UPDWLYHDFWLRQ-DSDQKDVSROLFLHVWRKHOSWKH%XUDNXPLQZKRDUHFRQVLGHUHGWKHRXWFDVWH group. Macedonia has quotas for Albanians. Malaysia has the Malaysian New Economic Policy. New Zealand KDV DI¿UPDWLYH DFWLRQ IRU 0DRULV DQG 3RO\QHVLDQV 1RUZD\ UHTXLUHV RI WKH 3XEOLF /LPLWHG &RPSDQLHV boards to be women. Romania has quotas for Romas. South Africa has Employment Equity. South Korea KDVDI¿UPDWLYHDFWLRQIRU&KLQHVHDQG1RUWK.RUHDQV6UL/DQNDKDVUXOHVIRU&KULVWLDQVDQG7DPLOV6ZHGHQ KDV JHQHUDO DI¿UPDWLYH DFWLRQ 8QLWHG .LQJGRP KDV WKH (TXDOLW\ $FW DQG 86 KDV DI¿UPDWLYH DFWLRQ -https://www.quora.com/Which-countries-other-than-India-have-caste-based-reservation-systems (Lat visited on 01 September 2017 at 5.45 p.m.). Published in Articles section of www.manupatra.com KLE Law Journal 54 DQGVHJUHJDWLRQKDVOHGWRDI¿UPDWLYHDFWLRQLQWKH(XURSHDQZRUOGZKLOHHFRQRPLF backwardness, social exclusion, segregation, discrimination and exploitation of FHUWDLQFRPPXQLWLHVGXHWRFDVWHV\VWHPKDYHQHFHVVLWDWHGDI¿UPDWLYHDFWLRQLQ India. Reservation policies in India aim at uplifting the submerged sections of the society and bringing them back into the national mainstream by reserving jobs and other facilities in various institutions/organisations. Reservation in India is a form RIXQLTXHFDVWHEDVHGDI¿UPDWLYHDFWLRQGHVLJQHGWRLPSURYHWKHZHOOEHLQJRI backward and under-represented communities. 1HHGHYROXWLRQDQGEHQH¿FLDULHV For understanding the rationale of reservation in India, it is inevitable to trace the evolution of the caste system since the roots of reservation lie in the latter. The EDVLVRIVRFLDOVWUDWL¿FDWLRQFDQEHHLWKHUVODYHU\HVWDWHVFDVWHVRFLDOFODVVDQG status. 11 7KH+LQGXVRFLHW\LQ,QGLDZDVVWUDWL¿HGRQWKHEDVLVRIWZRIXQGDPHQWDO elements. One being the natural endowment of man and the other pertains to his nurture and upbringing together known as Varna Ashrama Vyavastha grounded on differences in caste and differences in stages of life. Dharma was supposed to be prescribed for each class and each stage of an individual’s life. According to Ashrama dharma , for achieving moksha, one has to cross four stages of life viz., Brahmacharya Ashrama or student stage; Grihastha Ashrama or householder stage; Vanaprastha Ashrama and Sanyasa Ashrama . Varnadharma decides an individual’s position in the society. 12 The initial distinction of people into two varnas viz., the fair Aryans and the dark Dasas later developed into three groups as referred in the Rig-Veda viz., Brahma i.e., Priests,