Moments in a History of Reservations

Though the subject of reservations has figured prominently in public debates ever since the recommendations of the Mandal Commission Report were sought to be implemented in 1991, there has been very little discussion by the beneficiaries of reservations. This paper looks at some of the more significant historical, constitutional and legal moments in the evolution of a reservations policy in India.

BHAGWAN DAS

he subject of reservations is a vast was really devised by the brahmins in India British India was facing problems right one. Even in terms of a historical who framed laws and rules in the name from the 18th century when Lord Taccount of reservations in India, it of Dhamma and Brahma to divide society Cornwallis took over as governor general would be impossible to cover most of its vertically and horizontally and exploit large in 1786. The East India Company was aspects in the space of one paper. This numbers of people – poor, deprived, ig- reeking with corruption. Administrators article, therefore, provides brief entry- norant and divided – so that a few on top often find scapegoats and Cornwallis was points into some of the more significant may continue to enjoy the good things of no exception: He blamed the Indians for historical and legal moments concerning life – power, prestige, priviledges. Reser- maladministration and inefficiency which the development of a reservations policy vations were not introduced, as some Hindu resulted in large losses of revenue. in India, all of which require much more writers have asserted, so that the British Cornwallis introduced certain reforms and attention and analysis. could ‘divide and rule’ Indians. closed the doors to employment for the A great deal has been written against The reservation or quota system was Indians, except in the lower ranks of reservations policies since the acceptance introduced in Malta before it was even administration. Scions of the upper castes of the Mandal Commission Report in 1991 mentioned in India. Yugoslavia had five and affluent families turned to other pro- in favour of reservations in higher education nationalities and six linguistic groups. fessions, especially the profession of law. and government services for the other Power had to be shared and a kind of quota Another event which affected Indians in backward classes of India. Very little has system was established to keep the country the services was the introduction of En- been written by the beneficiaries of reser- united. Americans, whether they admit it glish as the official language by Lord vations, whether in book form or in the form or not, were influenced by the Indian Macaulay. It was decided in the council of articles in the national press. Those who experiment and ‘affirmative action’ was with Lord Macaulay as law minister that are vociferous and loud in their criticism introduced in the 1960s with a view to while Madrassas and Sanskrit schools of reservations invariably belong to the giving a share to the discrimination – would be allowed to function, official dominant groups, who have been enjoying African-Americans, Native Americans and business was to be conducted in English. the benefits of, if not a monopoly over, other ethnic minorities. Other countries of “The cause of English was still further education, wealth, land and public services. Europe and America including Great advanced by the regulation introduced by On the other hand, the worst victims of the Britain are now thinking along the lines the first Lord Hardinge that all public condemnation, persecution and exploita- of some reservation or affirmative action services were to be filled by an open tion of contemporary society have been the for ethnic and other minorities who are competition examination held by the shudras, dalits (untouchables, unseeables victims of discrimination by the dominat- Council (the successor of the Committee and unapproachables) and women. ing groups. of Public Instruction), preference being There is a difference between the bird’s In the Indian context, reservations were given to the knowledge of English. Vir- point of view and the worm’s point of introduced during the last decades of the tually, English education was made the view. There are many scholars and intel- 19th century at a time when the subcon- only passport to higher appointments lectuals in India whose vision get easily tinent could be broadly divided according available to the Indians, and hence its stigmatised by phrases and slogans bor- to two main forms of governance – British popularity and rapid progress were equally rowed from the west and other lands. India and the 600 princely states. Some of assured” (Mazumdar, An Advanced His- Writers belonging to the Hindu upper castes these princely states were progressive and tory of India:818). While the benefits of – not Muslims, Christians or Buddhists – eager to modernise through the promotion English education were reaped by mem- have often asserted that it was the British of education and industry; and by main- bers of affluent and newly emerging middle who introduced the policy of ‘Divide and taining unity among their own people. class people, the masses remained igno- Rule’ into India. The phrase ‘divide and Mysore in south India and Baroda and rant and backward. rule’ was in fact originally deployed by the Kolhapur in western India took consider- Brahmins in the Madras presidency and dominating classes of Rome who con- able interest in the awakening and ad- the Bhadralok in the Bengal presidency quered a large portion of the world and vancement of the minorities and deprived took advantage of the new educational had to devise ways and means to maintain sections of society. It should not surprise policy and the central place of the English their empire and supremacy. But if we us then that the very first records of imple- language within it and occupied most of seriously and earnestly study the history menting reservations policies are from these the posts available in the administration. of man, the principle of divide and rule princely states. Brahmins in Madras comprising barely

WS-31 Economic and Political Weekly October 28, 2000 3831 3 per cent of the total population occupied also to a reduction of soldiers of untouch- Under this pressure an agreement was more than 80 per cent of the posts. In the able origin in the Bengal army. They signed between the Hindu leaders and the princely state of Mysore the Tamil brahmins however, continued to be enlisted in the leaders of the depressed classes to save the monopolised all the jobs. Kannadiga presidency armies of Bombay and Madras. life of Mahatma Gandhi. This agreement brahmins had a very small share in public The British changed their recruitment is known as the Poona Pact, and its pro- services. The maharaja of Mysore was well policies according to their political needs. visions included the following: advised by his ministers and the resident Christian missionaries contributed a great (1) There shall be seats reserved for the and some reforms were introduced with a deal towards awakening the untouchables depressed classes out of the general elec- view to giving a larger share to the and promoting literacy, in spite of discour- torate seats in the Provincial Legislatures Kannadiga brahmins, vokkalligas and agement by the British officers, many of as in Table. lingayats beside the untouchable castes whom thought that missionary work was Table and the Muslims. Reservations were thus a nuisance. Some of them changed their Madras 30 introduced in 1918 in favour of a number attitude later on. Bombay with Sind 15 of castes and communities that had little Ibbetson, the famous Census Commis- Punjab 8 share in the administration. sioner, wrote “untouchables are politically Bihar and Orissa 18 The introduction of English as the of- not important”. This was because they Central Provinces 20 ficial language antagonised the Muslims, were asking for concessions and facilities Assam 7 who perhaps unwisely decided not to learn for their upliftment and had not organised Bengal 30 the language of the infidels. It was through themselves as a political force. It was United Provinces 20 the efforts of the famous Muslim leader only with the arrival of Ambedkar that Total 148 Syed Ahmed Khan that education was they acquired a leader of stature and given prominence and schools opened. As education who could also make a political (2) Election to these seats shall be by joint the largest religious minority, Muslims had difference. electorates, subject however, to the follow- a grievance that they had very little share ing procedures: in the administration of the country. The I All members of the depressed classes, British had also changed their attitude registered in the general electoral roll in Provisions of Communal a constituency will form an electoral col- towards them. Upper caste Hindus, on the Award lege, which will elect a panel of four other hand, were taking advantage of the candidates belonging to the depressed educational facilities provided by the The question of reservations was also classes for each such reserved seat, by the British as well as the Christian mission- discussed in the round table conferences method of the single vote; the four persons aries and were organising and agitating for and provisions were made in the Commu- getting the highest number of votes in such political power. They had a large share in nal Award of 1935 in spite of opposition primary election shall be candidates for the bureaucracy. by Mahatma Gandhi. Seats were reserved election by the general electorate. Muslims, however, appreciated the in the legislature in favour of Mohammed- (3) Representation of the depressed classes importance of political and administrative ans, Sikhs, Marathas, Europeans, Parsis, in the central legislature shall likewise be power. A delegation of Muslim nawabs, Anglo Indians, and Christians. As regards on the principle of joint electorates and landlords, and prominent persons led Agha the depressed classes the following pro- reserved seats by the method of primary Khan, leader of the Ismaili Sect, waited vision was made: elections in the manner prescribed for in upon the viceroy and presented a memo- Clause 2 above, for their representation in Members of the ‘depressed classes’ quali- the provincial legislature. randum demanding a share in the admin- fied to vote will vote in a general constitu- istration in proportion to their population. ency. In view of the fact that for a con- As regards the share in the administra- The viceroy gave it sympathetic consid- siderable period these classes would be tion, the following provisions were made eration and provisions were made in the unlikely by this means alone, to secure any in the Poona Pact: adequate representation in the legislature, government of India Acts of 1909 and There shall be no disabilities attaching to a number of special seats will be filled by 1919 granting the Muslims due share and any one on the ground of his being a election from special constituencies in other facilities. member of the depressed classes in regard which only members of the ‘depressed The untouchables – or the depressed to any election to local bodies, or appoint- classes’ electorally qualified will be en- ment to the public services. Every endeav- classes as they were then called – had titled to vote. Any person voting in such our shall be made to secure fair represen- joined the presidency armies and fought a special constituency will, as stated above tation of the depressed classes in these battles under the command of British be also entitled to vote in a general con- respects subject to such educational quali- officers. They had contributed a great deal stituency. towards the creation of the British empire. It is intended that these constituencies fications as may be laid down for appoint- In the army, untouchable soldiers got their should be formed in selected areas where ment to the public services. first opportunity to learn to read and write the depressed classes are most numerous, As against the 78 seats allotted to the and were also exposed to new ideas. and that, except in Madras, they should not depressed classes in the state legislature, Untouchables also worked as camp-fol- cover the whole area of the province. the Poona Pact gave 148 seats. However, lowers and domestic servants – as cooks, Mahatma Gandhi saw a danger to hinduism untouchables lost the right to elect their butlers, bearers, sweepers, gardeners, in these specific provisions of the commu- own representatives and this right was ‘ayahs’ and so on – for British families nal award in favour of the most deprived transferred to the Hindus. The result was in their cantonments. The brahminisation and disadvantaged sections of society and that those who were elected remained of the Bengal Army led to mutinies and threatened to go on a fast unto death. faithful to the parties and leaders who

WS-32 3832 Economic and Political Weekly October 28, 2000 adopted them as candidates and funded provision of reservations in favour of the it was extended to include all scheduled their elections. scheduled castes. Scheduled castes mem- castes professing Sikhism. The Poona Pact had far reaching effects bers, mostly belonging to the Congress, Ambedkar revived Buddhism and started and obstructed their progress in other fields were worried about losing reservation mass conversion to Buddhism in October also. The government issued orders re- because Sardar Vallabhbhai Patel, presi- 1956. The government of India issued garding reservation in services vide reso- dent of the minority committee, was op- orders declaring them ineligible to any of lution No F 14/17-B 33 dated July 4, 1934 posed to reservation. They approached the concessions admissible to scheduled (Gazette of India, part I, July 7, 1934). Ambedkar, who in turn advised them to castes. In 1990 scheduled castes profess- Reservation in public services was pro- speak to Mahatma Gandhi, and remind ing Buddhism were also included among vided for all minorities excepting the him about the promise made in the Poona the scheduled castes. depressed classes: Pact. Provision was made in the constitu- There is no such restriction with regard 3 In regard to the depressed classes it is tion of India for reservation in the legis- to the people belonging to the scheduled common ground that all reasonable steps lature for 10 years ending in 1960. This tribes who return themselves as animists, should be taken to secure for them a fair has recently been extended up to 2010. Hindus, Christians or Buddhists. Article 14 degree of representation in the public Provision was also made for reservation guarantees equality: “The state shall not services. The intention of the caste Hindus in public services. This has no time limit. deny to any person equality before the law in this respect was formally stated in the Surprisingly, prime ministers, political or the equal protection of the laws within Poona Agreement of 1932 and His leaders and journalists have been making the territory of India. Article 15 concerns Majesty’s government in accepting that speeches and writing articles giving the discrimination against any citizen on agreement took due note of this point. In impression that it is reservations in public grounds of religion, race, caste, sex, place the present state of general education in of birth or any of them. Article 16 (1) these classes the government of India services which have been extended for ten considers that no useful purpose will be years. Reservations made under Article 335 guarantees equality of opportunity in served by reserving for them a definite read together with Article 46 has no time matters of public employment etc. percentage of vacancies out of the number limit prescribed under the constitution. Reservations in public services and available for Hindus as a whole, but they Reservation was also made in favour of educational institutions were created with hope to ensure that duly qualified candi- Anglo Indians for a shorter period in view a view to giving a share to the members dates from the depressed classes are not of the difficulties and disabilities peculiar of society who had been denied opportu- deprived of their opportunities of appoint- to them. nities in the past. This naturally antagonised ment merely because they cannot succeed those sections of society who had been in open competition. II enjoying the monopoly of power. Imme- Ambedkar was appointed member of the Constitutional Provisions diately after the adoption of the constitu- Viceroy’s Executive Council and he sub- tion, the provision of reservation under mitted a memorandum ‘On the Grievances Article 46 contains the provisions re- Article 16 was challenged through a writ of the Scheduled Castes’ detailing their garding the interests of the weaker sections petition filed in the Madras High Court grievances, and also demanding reserva- of society: (State of Madras vs Champakam tion in public services, scholarships and The state shall promote with special care Dorairajan, April 1951). The case came stipends for study within the country and the education and economic interests of the before the Supreme Court of India. It was abroad, a share in contracts, and so on. This weaker sections of the people, and, in held that the communal government order was duly recommended by the viceroy and particular of the scheduled castes and the of the Madras government fixing the pro- referred to the secretary of state, who scheduled tribes, and shall protect them portion of students of each community that accepted the recommendations. The sched- from social injustice and all forms of could be admitted to state educational in- uled castes were allowed 8.5 per cent exploitation. stitutions was ultra vires under Article 29(2) reservation in central services and other Who is a member of the scheduled castes (which states that no citizen shall be denied facilities for the first time in the history and scheduled tribes has been defined under admission into any educational institution Article 366 of the Constitution. of India in 1942. Art 366(24) ‘scheduled castes’ means such maintained by or receiving aid from the As already mentioned earlier, under castes, races or tribes or parts of or groups state on grounds only of religion, race, pressure from upper caste Hindus and also in such castes, races or tribes as are deemed caste, or language) and was not saved by for political reasons the doors of the armed under article 341 to be scheduled castes the provisions of Article 16. There was forces were closed to the untouchables in for the purposes of this Constitution. considerable protest in the southern states the early decades of the 20th century. (25) ‘Scheduled Tribes’ means such tribes as the result of which the Constitution was However, the British needed more merce- or tribal communities or parts or groups amended for the first time, and Clause 15(4) nary soldiers during the second world war. within such tribal communities as are deemed added: under Article 342 to be the scheduled tribes People were therefore liberally enlisted in Article 15(4): nothing in this article or in for the purposes of the Constitution. the Air Force, Navy and Army besides in Clause (2) of Article 29 shall prevent the units such as Supply Corps, Engineering Initially, only members of the scheduled state from making any special provision Units, Civil Pioneer Force and so on. castes professing Hinduism and four for the advancement of any socially and After the transfer of power in 1947, a castes among the Sikhs (Kabirpanthis, educationally backward classes of citizens drafting committee with Ambedkar as Ramdassias, Sikligars and Mazhbis) were or for the scheduled castes and scheduled chairman was set up to draft the consti- included in the list in accord with the tribes. tution of India. Some members of the provision made in the scheduled castes Those who are opposed to reservations constituent assembly were opposed to the order appended to the Constitution. In 1956 in public services have challenged all

WS-33 Economic and Political Weekly October 28, 2000 3833 orders issued by the government under Even though the rights of scheduled Besides the scheduled castes, scheduled Article 15(1) or under Article 16. Article 226 castes had nothing to do with the subject tribes and other backward classes, Chris- (on the enforcement of fundamental rights of the OBCs of the Mandal commission tians of dalit origin and backward sections by a High Court) or Article 32 (concerning report, certain items affecting them were of Muslim society are also staking their moving fundamental rights before the included as issues. Justice Ahmedi raised claim for a share in governance. After Supreme Court) are invoked and writ pe- an objection and did not comment on independence and the creation of Pakistan, titions are filed before the High Court. the issues during the proceedings. The Muslims have not been able to enter public Sometimes the government comes before promotion of scheduled castes was dis- services. There is a genuine need to make the Supreme Court, and sometimes it is the cussed and the Supreme Court held that provisions in order to make the bureau- petitioners, if they feel aggrieved, who do there should be no reservations in promo- cracy more representative. Women who so. Judicial process has routinely and tion. In spite of all the opposition to Mandal, comprise about 49-50 per cent of popu- effectively been used to obstruct the reservations in favour of the other back- lation also deserve consideration for res- progress or to delay the implementation of ward classes to the extent of 27 per cent ervation – and not only in the legislature reservation orders. was upheld and the agitationists were but also in the bureaucracy. Post-independence India has witnessed disappointed. As in the days of old when some people many landmark cases which have affected Besides these there are landmark cases raised the various cries, ‘religion in dan- the administration as well as interests of like the Rangachari case (Rangachari vs ger’, ‘dhamma is in danger’ or ‘Islam is the scheduled castes, scheduled tribes and General Manager, 1962), Devadasan case in danger’, nowadays a new slogan is being other backward classes. In the famous case (Devadasan vs Union of India, 1964; which raised: “abolish reservations because merit of Balaji versus Mysore state in 1962, was ruled out in the Indira Sawhney case), and efficiency are in danger”. This is often reservation orders were challenged on the Hira Lal case, and the recently decided heard in the Supreme Court also. Those grounds that the lists of backward classes PGIMS Chandigarh Case (reservation in who have been opposing reservations in were prepared only on the basis of caste medical colleges) and Ajit Singh Janjua public services and educational institu- and that this was unconstitutional. The case (seniority in promotion case) which tions do so because their personal interests Supreme Court struck down the Mysore have adversely affected the interests of the are in jeopardy. Those who made the pro- Backward classes list. Similar claims were scheduled castes and scheduled tribes. visions in the Constitution had the interest again taken up in the Chitralekha case Reservations were originally provided of the nation in view. If more and more (Chitralekha vs state of Mysore, 1964). In for the scheduled castes and scheduled people take part in decision making – which this case, the Supreme Court interpreted tribes. It was extended to the other back- also means in the execution and imple- the Balaji case somewhat differently. It ward classes at the national level in 1993. mentation of these decisions taken in a was pointed out that two principles were Several states have passed their own laws democratic manner – the country will prominent from the observations in Balaji’s and granted reservations to backward benefit. Those who want to maintain the case namely (1) ‘the caste of a group of sections of society. It was held by the status quo and consider their personal citizens may be a relevant circumstance in Supreme Court of India that reservations interests above the national interest, op- ascertaining their social backwardness’ and can be made under an executive order. pose reservations. Dominating groups who (2) though it is a relevant factor to deter- However, in view of the recent judgments have been enjoying a monopoly of power mine the social backwardness of a class of the Supreme Court affecting the sched- are also notorious for corrupt practices. Be of citizens, ‘it cannot be the sole or domi- uled castes which have stirred the minds it said to our shame that our country’s nant test’. In another landmark case, of the scheduled castes and scheduled name appears among the first four most namely, Jayasree versus state of Kerala tribes, the government is under pressure corrupt countries of the world. One wishes (1976), the Supreme Court accepted the to enact a law so that the judiciary may this pernicious development had also at- logic of the Kerala High Court that eco- not decide against the deprived and dis- tracted the attention of the patriots and nomic backwardness plays a part in social advantaged sections of society. champions of merit. EPW and educational backwardness. In the Thomas case (State of Kerala versus N H Thomas, 1976) the Supreme Court upheld JUST RELEASED caste based reservation. The Supreme Court also observed that the aim of the Consti- India & World Trade Organisation: Planning and tution is to eliminate caste from the affairs Development by P.K. Vasudeva Rs. 800/- of the state. Yet certain backward castes World Bank and Economic Development of India by L.N. Dash Rs. 600/- have to be recognised and classified for Financing the Grass Roots Government: B. Mohanty Rs. 500/- compensatory measures so that caste can Big Dams Dilemma: R.N. Padaria Rs. 500/- be abolished ultimately. Economic Liberalization & Regional Disparities The implementation of the recommen- in India by R.K. Meher Rs. 700/- dations of the Mandal Commission was Non-Conventional Textiles in India: G.K. Ghosh Rs. 400/- challenged and opposed not only by angry Development of Uttrakhand: Issues & Perspectives: G.S. Mehta Rs. 400/- students belonging to the Hindu upper castes, but also by the Supreme Court bar APH Publishing Corporation association. A writ petition was filed in 5, Ansari Road, Darya Ganj, the name of Indira Sawhney, one of the New Delhi – 110002 (INDIA) practising advocates of the Supreme Court.

WS-34 3834 Economic and Political Weekly October 28, 2000