January 22, 2025

Has The Time Come To Revise The 50 Percent Cap On Reservations?

By Sunil Garodia
First publised on 2021-03-10 06:51:15

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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.

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Reservation, as in affirmative action to provide succor to communities that were historically discriminated against or otherwise deprived of their rightful claim to the benefits of various government schemes, was capped at 50% by a 9-judge constitutional bench in the Indira Shawney case in 1992. Now, the Supreme Court has decided to revisit that judgment in the light of various constitutional amendments and changed social dynamics in these 29 years. Although it is expected that laws will evolve with time and become better though either legislative or judicial intervention, reservation is a tricky matter and anything related to it must be taken up only if it is absolutely necessary and unavoidable and  that too with extreme caution. The 50% cap on reservations considers both the need for affirmative action and the need for merit and equal opportunity. It must not be tampered with only to satisfy the egos of politicians and their machinations to acquire vote banks.

In reservation matters, three main things need to be kept in mind. First, the need for reservation must be viewed in relative terms and not on absolute terms, as has now become the trend. Viewed on relative terms, neither the Marathas nor the Patels nor the Jats need reservation. But the vote-bank politics in India often finds new constituencies and newer ways to provide the ‘benefits’ of reservation to them. On absolute terms many sub-categories in almost all communities will qualify for reservation. That, in effect, will make reservation meaningless.

Second, even if reservation has to be provided to certain categories, it has to be ensured that the benefits accrue to the broad section and not only to a privileged few. For, despite the restriction of creamy layer, it is often seen that the present reservation setup works in the favour of a privileged minority among the beneficiaries. If the benefits do not accrue to the most deprived sections, the exercise becomes meaningless as it does not empower the poor and the deprived but benefits those who do not actually need it. There has to be a mechanism other than the creamy layer to address this issue.

Finally, merit and equal opportunity cannot be fully sacrificed at the altar of affirmative action. For this, the underprivileged must be provided opportunities for bringing themselves up by providing them good and free education from the primary level. Handouts work positively only to a certain extent, it is the confidence acquired through knowledge that works in the long run. Politicians should work to make the underprivileged classes competent enough to compete with the best and secure seats in universities and jobs on merit. It will take time and reservation will have to exist till then, but it is achievable if the political will is there. But if politicians keep pandering to new reservation demands and do not work to improve education levels for the underprivileged, reservation will continue ad infinitum and merit and equal opportunity will continue to suffer.

The 50% cap on reservations considers both the need for affirmative action and the need for merit and equal opportunity. It must not be tampered with only to satisfy the egos of politicians and their machinations to acquire vote banks. The exceptional circumstances, under which the cap can be breached, as prescribed in the Indira Shawney judgment, must truly be exceptional and not contrived. The larger Supreme Court bench that will examine the said judgment and decide whether there is a need to revise the cap must think of these issues along with the need to decide whether the said judgment and other articles in the Constitution impinge upon the rights of the states to enact legislations providing reservation beyond the prescribed limit.