Mubashir touches on everything except an affirmation program for religious minorities in Kashmir
Reservation: Paradox of Equality
Mubashir Ahmad, Lawyer
It is true that poorer and underprivileged sections of the society need to be safeguarded through law. The sections of the population that have been scheduled under various names, depicting their social and economic condition, must be provided with chances to participate in the governance of the country and the access to resources. All the principles of justice and fare play demand that if someone is disadvantageously placed he needs to be helped so that his disadvantage does not become a hurdle in his economic and social mobility.
The structure of democracy rests on the concept of equality before law. Treating unequal equally is the negation of the principle of equality, which finds place as a Fundamental right available to a citizen in almost every democracy.
Although social equity and justice demand equal treatment to all individuals, but In order to bridge gap between different sections of the community and furnish equal opportunities of employment with an aim to achieve social justice, the policy of reservation is viewed at as positive or a protective discrimination. But how far the reservation, the constitutional privilege given to the under privileged classes, serves the purpose.
Indeed the state of Jammu and Kashmir is governed by its own Constitution but the part 3rd of Indian Constitution, enshrining the Fundamental Rights, is verbatim applicable to this State. Article 15(4) and 29(2) of the Constitution allows the State to make special provisions for the advancement of any Socially and Educationally backward classes of the citizens or for Scheduled Castes and Scheduled Tribes. Backward status to any class has been defined by the Supreme Court of India in a number of cases, which led to emergence of several propositions:
a) Backwardness envisaged by Article 15 (4) of Indian constitution is both social and educational.
b) Poverty alone cannot test backwardness. It should be comparable though not exactly similar to scheduled castes and tribes.
c) Caste cannot be the sole or dominant factor; poverty, occupation, place of habitation all contribute to backwardness and such factors cannot be ignored.
While according the backward status to any class the above cited propositions are to be seen together and not in isolation. But the ground practice is altogether different. Reservation in our society proves as a convenient way to undermine merit. As the equality is applied outside its domain, without following strictly the rules and regulations, the reservations give birth to political corruption.
Earlier in 1992 in “Indra Sawney v/s Union of India” Mandal I case. The nine Judge bench of the Supreme Court of India upheld 27% of reservation for OBCs and had clearly held exclusion of socially advanced (creamy layer) of the OBCs as mandatory. While reiterating the same view, the Supreme Court in “ Ashoka Kumar Thakur v/s Union of India 2008 Mandal II case directed the government to issue a notification excluding creamy layer from OBC beneficiaries.
Despite internal Constitutional checks, fraud is Committed on the constitution through many ways:
• Voluntary mobility into the categories; usually by acquisition of the land in the rural/ backward areas for securing the backward status.
• Manipulating income certificates, in order to escape the creamy layer test. This kind of fraud is often committed by the grade I government employees.
• Wrong inclusion of certain areas in OBC category, motivated by political considerations.
Recent inclusion of many areas in the ambit of reservation castes makes a doubtful reading. At the same time it makes relevant the observation made by Justice Arijit Pasayat in Mandal II case Paragraph 43, “is it that backwardness has increased instead of decreasing? If the answer is Yes, as contended by the respondents (union of India) then one is sure to raise eyebrows as to the effectiveness of providing reservation or quota.”
Reservation was a temporary measure to uplift the backward classes and bring them at par with other sections. But political class had vested interests in continuing with the OBC reservation. More so, the Article 15(4) of the Constitution is not a provision which is exclusive in character, so that in looking after the advancement of those classes, the state would be justified in ignoring altogether the advancement of the rest of the society.
In order to say no to this seemingly protective discrimination which proves only discriminatory in the spirit, the state government has many measures available to check this onslaught on meritocracy.
• Firstly the benefit of the reservation must be made contingent on the veracity and genuineness of the certificates produced in support of being the member of any under privileged class entitled to reservation.
• Before according the reserved category certificate to a candidate a one week notice must be given to the people through newspapers having wide circulation, seeking the objections if any.
• There must be a separate committee staffed with the honest officials, in every district to deal with this responsible job.
• There must be the strict rules for the subordinate revenue officials giving them no room and latitude to commit the fraud by manipulating the revenue records.
• The whole record must be thrown open to public scrutiny, which is the first step towards the transparency and objective behind the right to Information Act.
Although this practice will be time consuming yet it is need for the purpose of justice. Having said all this, it is obligatory on the state to protect the rights of the citizens. The administration must not wait for public motions/ complaints but should act suo motu as it does while according the benefit on the expense of the meritocracy.
(Rising Kashmir)