Reservation Policy Requires Re-Look, Other Methods Needed To Uplift Downtrodden Among SC/ST/OBCs : Supreme Court Judge

While concurring with the majority view that sub-classification of Scheduled Castes is permissible, Supreme Court judge Justice Pankaj Mithal called for a re-look on the reservation system and opined that other methods are needed to uplift the downtrodden among the SC/ST/OBC categories.

Justice Mithal, who was part of the 6-1 majority of the 7-judge bench, observed in his concurring judgment that the reservation policy, regardless of its success or failure, has "burdened" the judiciary at all levels with enormous litigation. This could have been avoided if a "robust reservation policy" was followed from the very beginning  instead of making piecemeal changes.

He also mentioned that pro-reservation and anti-reservation agitations have often turned violent, disturbing the peace and tranquillity of the entire country. At the same time, he clarified, "By referring to the above agitations, disturbances, violence, litigation and shortcomings, I do not to intend to suggest that the task of upliftment of the downtrodden be brought to an end or that the government should give up the reservation policy. But the issue is how to carry out the process to bring about equality and development of all, the manner of identification of the so-called depressed classes or the downtrodden and the form/nature of steps to be taken for their upliftment."

Benefits of reservation not reaching the deprived and the marginalised

According to Justice Mithal, statistics prove that the deprived and the marginalized persons have not been able to achieve the benefit of reservation which is permissible at higher level as about 50% of the students from the most backward classes drop out of school before Class-V and 75% drop out before Class-VIII. The figure goes to even 95 per cent when it comes to the level of high school.

"Thus, only the children of some of the castes, who are already affluent or urbanized, are able to obtain higher education and the benefits of reservation," he said.

"The experience shows that the better of the class amongst the backwards eats up most of the vacancies/seats reserved leaving the most backward with nothing in their hands," Justice Mithal wrote in the judgment.

Ancient India had no caste system, varna system was misconstrued.

Justice Mithal observed in the judgment that there was no caste system prevalent in ancient India but a categorization of people according to their profession, talent, qualities and nature.

"I am not an expert of religious scriptures nor do I claim that I have any knowledge of any one of them though I may have gone through Bhagwad Gita and Ramcharit Manas some times. According to my limited understanding of the scriptures specially the Gita, I am of the firm view that in primitive India there was no existence of any caste system rather there was categorisation of the people according to their profession, talent, qualities and nature."

 However, with the passage of time, the varna system deteriorated and the people started labelling these varnas on the basis of birth, ignoring the nature and characteristics of a person which is exactly the opposite to what is preached in Gita. The misconstruction of the varna system as a caste system was a social defect that crept in with time.

"There was no caste system in primitive India. Slowly the varna system prevalent was misconstrued to be a caste system... With the adoption of the Constitution, we again tried to move into a casteless society but in the name of social welfare to uplift the depressed and the backward classes, we again fell into the trap of caste system," he wrote in the judgment.

"It is common understanding that what is conceded once to appease any class cannot be taken back. So are the benefits extended to the reserved category of persons under the constitution. Each concession once made, just goes on swelling like a raisin/balloon. This actually happened with the policy of reservation also," he added.

Reservation's execution revives casteism

Justice Mithal said that reservation is one of the modes to uplift the downtrodden; however, its execution "revives casteism."

"'Reservation' is one of the modes of helping or uplifting the status of the OBCs/SCs/STs. Anyone who suggests another or a better way of helping the so-called depressed classes or the downtrodden or the marginalised persons of the society is immediately pounced upon as 'Anti Dalit'," he said.

Justice Mithal said that at the cost of being called "Anti-Dalit", he was quoting a passage from the autobiography of legal luminary Nani Palkhivala which criticised caste-based reservations as reviving casteism.

 He summarised his views as follows 

 (i) The policy of reservation as enshrined under the Constitution and by its various amendments requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities. So long no new method is evolved or adopted, the system of reservation as prevailing may continue to occupy the field with power to permit sub- classification of a class particularly scheduled caste as I would not be suggesting dismantling of an existing building without erecting a new one in its place which may prove to be more useful;

(ii) In the Constitutional regime, there is no caste system and the country has moved into a casteless society except for the deeming provision under the Constitution for the limited purposes of affording reservation to the depressed class of persons, downtrodden or belonging to SC/ST/OBC. Therefore, any facility or privilege for the promotion of the above categories of persons has to be on a totally different criteria other than the caste may be on economic or financial factors, status of living, vocation and the facilities available to each one of them based upon their place of living (urban or rural);

(iii) The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation; and

(iv) It is reiterated that periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category.