Recently, Chhattisgarh Legislative Assembly passed two reservation bills in the house, namely Chhattisgarh Public Service (Scheduled Caste, Scheduled Tribes, and Other Backward Classes Reservation) Amendment Bill and Chhattisgarh Educational Institutions (Reservation in admission) Amendment Bill, raising the total bar of reservation in the state, in matters of public employment and admission in educational institutes to 76%. This bill was to soon get the assent of the Honourable Governor of the State Anusuiya Uikey, about which she already presented a positive approach in her interview, but it is still at bay and the governor has yet not signed the bill. The government of Chhattisgarh has informed that this percentage of reservation i.e., 32% for Scheduled Tribe, 13% for Scheduled Caste, 27% for Other Backward Classes, and 4% for Economically Weaker Section was determined after the report of the Chhattisgarh Quantifiable Data Commission, set up in 2019. The commission in its report has stated that the population of people belonging to OBC and EWS in the state is 42.41% and 3.48% respectively.
The whole of this process can be seen as a result of the recent judgment of the apex court in the famous EWS case Janhit Abhiyan v. Union of India The question here is, does this protection against discrimination, in itself, become a form of discrimination?
IS THE BAR OF 50% ON RESERVATIONS REMOVED?
The recent judgment, following which many of the states including Chhattisgarh and Jharkhand have raised the bar of reservation crossing the limit of 50% does not hold any concrete view on the cap of 50%. This question in the EWS case was answered by only one of the judges who explicitly dealt with the issue and said that this cap was only placed about the reservations under Articles 15(3), 15(5) ad 16(4) of the Indian Constitution.
But referring to the previous judgment of the Chhattisgarh High Court in Guru Ghasidas Sahitya Avam Sanskriti Academy v. State of Chhattisgarh & Anr where the court struck down the order passed during the rule of Raman Singh government in the year 2012, the reservation was raised to 58%. This is a very recent judgment delivered by the High Court in the year 2022 which curbed the breach of the ceiling of 50% limit. Passing this new bill just a few days after the judgment complicates the question of whether this cap of 50% is removed.
WHAT IS THE FUTURE OF RESERVATION?
In the case of Janhit Abhiyan v. Union of India the bench expressly remarked that it is time when we should think about the possibility of removing the reservations instead of increasing them. Reservation was not brought to be present forever, there has to be a time limit on when this will end, and the government should think about it.
The Supreme Court in various judgments starting from Indra Sawhney v. UOI but not limited to M Nagraj and Ors v. UOI has also pondered upon the efficacy of the overall administration while distributing the seats into reserved categories. The court was always of the view that while providing equal opportunities and working for the welfare of the underprivileged we must also keep in mind the overall efficiency and fulfilment of the purpose of the post.
But what use of it if the reservation itself exceeds the merit? The result of this has emerged aa s great brain drain. Studies have found that 23,000 Indian millionaires have left India since 2014 and that nearly 7,000 millionaires left in 2019 alone, costing the country billions in tax revenue. Since 2015, nearly 9 lakh Indians have given up their citizenship.
But the answer for merit already lies in the judgment of the apex court, where in the case of Neil Aurelio Nunes and others versus Union of India and others, the famous OBC Reservation case where 27% quota for OBC’s in NEET-PG was upheld, the court ended the debate of merit on the lines that merit cannot be assessed based on the marks obtained by a student in an examination, it is a much broader term. The court remarked that-
“An oppositional paradigm of merit and reservation serves to entrench inequalities by relegating reserved candidates to the sphere of incompetence, and diminishing their capabilities. We have already stated that while examinations are a necessary and convenient method to allocate educational resources, they are not effective markers of merit. The way we understand merit should not be limited to individual agency or ability (which in any event is not solely of our own doing) but it should be envisioned as a social good that advances equality because that is the value that our Constitution espouses. It is important to note that equality here does not merely have a redistributive dimension but also includes recognizing the worth and dignity of every individual. The content of merit cannot be devoid of what we value in society. Based on the above discussion, we find it difficult to accept the narrow definition of merit (that is, decontextualised individual achievement). We believe such a definition hinders the realisation of substantive equality”.
Although the h court made a historic judgment to end the arguments of merit, the data cannot be neglected which clearly shows the rate of brain drain from the country, the reality on the ground suggests a different scenario. If instead of ending this slowly according to the needs, we keep on increasing the reservation, there will be a time when no place for merit will be left.
Reservation as a whole is not what people condemn but distributing reservation above merit and that too being misused and taken advantage of by the people who have already achieved a good life, is what should be talked upon. There are many people in the interior or outskirts of the main cities and towns who do not have access to this opportunity, they are the ones who should be taking this benefit, but sadly they are not even aware of this. The introduction of a creamy layer in the reservation for ST/SCs should also be implemented, this step was taken by the apex court in the matter of promotions in the recent case of Jarnail Singh v. Lachhmi Narain Gupta. For the development of the nation, it is the high time we start pondering upon this question, we must strike a balance between welfare and development.
Author(s) Name: Shagun Shrivastava (Hidayatullah National Law University, Raipur)
 2022 SCC OnLine SC 1771
 2022 SCC OnLine Chh 1639
 Supra note 1
 AIR 1993 SC 477
 (2006) 8 SCC 212
 2022 SCC OnLine SC 75
 2018 SCC OnLine SC 635