Insights EDITORIAL ANALYSIS : Reservation in public employment

Source: The Hindu

Prelims: Current events of national importance(Supreme Court, High Court, reservation)

• Mains GS Paper II: Significance of separation of power, role in judiciary in checks and balances, law making power of Parliament, different judgments on public employment.

ARTICLE HIGHLIGHTS

• Supreme Court said that there is no fundamental right to reservation on promotion under Article 16(4) or Article 16(4A) of the Constitution, rather they are enabling provisions for providing reservation, if the circumstances so warrant(Mukesh Kumar and Another vs State ofUttarakhand & Ors. 2020).
• They vest a discretion on the government to consider providing reservations for the socially and educationally backward sections of the society and to provide reservation in promotion to Scheduled Castes andScheduled Tribes, respectively.

INSIGHTS ON THE ISSUE

Context

Constitutional Provisions Governing Reservation in India

• Part XVI deals with reservation of SC and ST in Central and State legislatures.
• Article 15(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST.
• Article 16(4) of the Constitution provides: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the state.
• The Constitution was amended by the Constitution (77th Amendment) Act, 1995 and a new clause (4A) was inserted in Article 16 to enable the government to provide reservation in promotion. Later, clause (4A) was modified by the Constitution 85th Amendment Act, 2001 to provide consequential seniority to SC and ST candidates promoted by giving reservation.
• Article 330 and 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively.
• Article 243D provides reservation of seats for SCs and STs in every Panchayat.
• Article 233T provides reservation of seats for SCs and STs in every Municipality.
• Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.

103rd Constitutional Amendment Act, 2019:

• It introduced economic reservation by amending Articles 15 and 16.
• It inserted Article 15 (6) and Article 16 (6) in the Constitution to allow reservation for the economically backward in the unreserved category.
• It was enacted to promote the welfare of the poor not covered by the 50% reservation policy for SCs, STs and Socially and Educationally Backward Classes (SEBC). This reservation is “in addition to the existing reservations and subject to a maximum of 10% of the total seats in each category”.
• It enables both Centre and the states to provide reservation to the EWSs of society.
• Since this is a central law on subjects (employment, education) in the concurrent list (subjects on which states and the central government both have jurisdiction), the state governments need to ratify it before adopting it locally.

Judgements related to reservation:

Indra Sawhney v. Union of India (1992) case:

• The court examined the scope and extent of Article 16(4).
• The Court has said that the creamy layer of OBCs should be excluded from the list of beneficiaries of reservation, there should not be reservation in promotions; and total reserved quota should not exceed 50%.
• The Court dwelled on the interrelationship between Articles 16(1) and16(4) and declared that Article 16(4) is not an exception to article 16(1), rather an illustration of classification implicit in article 16(1).

M.Nagaraj v. Union Of India 2006 case:

• The Supreme Court in M. Nagaraj v. Union Of India 2006 case while upholding the constitutional validity of Art 16(4A) held that any such reservation policy in order to be constitutionally valid shall satisfy the following three constitutional requirements:

1. The SC and ST community should be socially and educationally backward.
2. The SC and ST communities are not adequately represented in Public employment.
3. Such a reservation policy shall not affect the overall efficiency in the administration.

• The bench held that the creamy layer among Scheduled castes and tribes is to be excluded from reservation.

Jarnail Singh vs Lachhmi Narain Gupta(2018):

• The Supreme Court holds that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes.
• The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in promotion to SC/ST individuals who belong to the creamy layer of their community.

Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021) case:

• The Supreme Court affirmed the Indra Sawhney decision, and struck down Section 4(1)(a) and Section 4(1)(b) of the Act which provided 12% reservation for Marathas in educational institutions and 13% reservation in public employment
• This judgment gave out a strong message that some State governments blatantly disregard the stipulated ceiling on electoral gains rather than any exceptional circumstances.

Mandal Commission:

• In exercise of the powers conferred by Article 340 of the Constitution, the President appointed a backward class commission in December 1978 under the chairmanship of B. P. Mandal.
• It was formed to determine the criteria for defining India’s “socially and educationally backward classes” and to recommend steps to be taken for the advancement of those classes.
• The Mandal Commission concluded that India’s population consisted of approximately 52 percent OBCs, therefore 27% government jobs should be reserved for them.
• The commission has developed eleven indicators of social, educational, and economic backwardness.
• Apart from identifying backward classes among Hindus, the Commission has also identified backward classes among non-Hindus (e.g., Muslims, Sikhs, Christians, and Buddhists.

Need of reservation:

• It is to correct the historical injustice faced by backward castes in the country.
• It provides a level playing field for backward sections as they can not compete with those who have had the access of resources and means for centuries.
• It ensures adequate representation of backward classes in the services under the State.
• For the advancement of backward classes.
• It will ensure equality as the basis of meritocracy i.e all people must be brought to the same level before judging them on the basis of merit.

Arguments Against Reservation:

• Reservation in state services leads to divisions and enmity among government employees, vitiating the atmosphere at the workplace.
• The objective of the reservation policy was to eradicate, not perpetuation of caste but Caste Based Reservation only perpetuated the notion of caste in society.
• It was introduced to ensure that the historically underprivileged communities were given equal access to resources but irrespective of the economic progress they continue to remain socially disadvantaged.
  Reservations goes against meritocracy which is the foundation of many progressive countries.
• It has become a tool to meet narrow political ends through invoking class loyalties and primordial identities.
• The dominant and elite class within the backward castes has appropriated the benefits of reservation and the most marginalized within the backward castes have remained marginalized.
• Reservation has become the mechanism of exclusion rather than inclusion as many upper caste poors are also facing discrimination and injustice which breeds frustration in the society.

Reasons Behind Increasing Demands of Reservation:

• It is seen as a remedy for the adverse effects of ill-thought out development policies.
• In developed states like Haryana, Gujarat and Maharashtra, in spite of their economies being relatively better, three things have been worrying the people:

1. Acute agrarian distress,
2. Stagnation in employment growth
3. Distortions in the development trajectory.

• For governments, it is easier to talk of reservation than to make a course correction.
• Increasing reservation demands among upper castes also arising from the fear of losing privilege and the inability to cope with change
• Upper castes feeling disadvantaged especially in context of government jobs as they don’t get similar advantages like backward classes.

Instruments of Checks & Balances:

• Legislature Control

1. On Judiciary: Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidating it.
2. On Executive: Through a no-confidence vote it can dissolve the Government. Power to assess works of the executive through the question hour and zero hour. Impeachment of the President.

• Executive Control

1. On Judiciary: Making appointments to the office of Chief Justice and other judges.
2. On Legislature: Powers under delegated legislation. Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution.

• Judicial Control

1. On Executive: Judicial review i.e. the power to review executive action to determine if it violates the Constitution.
2. On Legislature: Unamendability of the constitution under the basic structure doctrine pronounced by the Supreme Court in Kesavananda Bharati Case 1973.

Way Forward

• There is a need for awareness generation because while the unreserved segments keep on opposing the provision, the neediest sections from within the reserved segments are hardly aware about how to benefit from the provision or even whether such provisions exist.
• The radical solutions like excluding the entire creamy layer among all castes from reservation and developing their capabilities instead of offering them reservation for admission to higher education or jobs on a platter.
• Meritocracy should not be polluted by injecting relaxation of entry barriers, rather than it should be encouraged by offering financial aid to the underprivileged.
• A strong political will is indispensable to find an equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system.

QUESTION FOR PRACTICE

There has been a continuous rise in demand for reservation. Critically analyze the basis for reservation along with recent judgments of the Supreme Court. (200 WORDS, 10 MARKS)