RELOOKING THE MANDAL VERDICT AND QUOTA CAP.
#GS-2 #POLITY #RESERVATIONS
Why does the Supreme Court think that the Indra Sawhney judgment should be referred to a larger Bench?
DIFFERENT ASPECTS OF THE NEWS SNIPPET:
- The Story So Far
- Frame Of Reference.
- Excerpts From Maratha Quota Law
- Mandating 50% Shall Be The New Rule.
- Constitution (One Hundred Second Amendment) Act Of 2018
- History Of Reservation In India
- Constitutional Provisions Governing Reservation In India
- Judicial Scrutiny Of Reservation
- Way Forward-How Will a judgment In this Case Impact Reservation?
The story so far:
- The Supreme Court, while considering the validity of the reservation for the Maratha community in Maharashtra on Monday, decided that it will hear all the States on the 50% limit on total reservation imposed by the court in the Indra Sawhney case (1992).
- This is because the 16% quota for Marathas would take the total reservation in Maharashtra beyond the limit of 50%. Over the years, several other States, including Tamil Nadu, have passed laws that allow reservation going beyond 60%.
- The court is also keen on hearing the views of the States on the 102nd Amendment of the Constitution, by which the National Commission for Backward Classes was given constitutional status.
Frame of reference.
- The Supreme Court decided to examine whether its nearly three-decade-old judgment which fixed reservation for the marginalised and the poor in government jobs and educational institutions at 50% needs a relook.
- In 1992, a nine-judge Bench of the court had drawn the “Lakshman rekha” for reservation in jobs and education at 50%, except in “extraordinary circumstances”.
- However, over the years, several States, such as Maharashtra and Tamil Nadu, have crossed the Rubicon and passed laws which allow reservation shooting over 60%.
Excerpts from Maratha quota law
- A five-judge Bench set up to hear the challenge to
- The Maratha quota law, decided not to confine the question of reservation spilling over the 50% limit to just Maharashtra.
- The Bench expanded the ambit of the case by making other States party and inviting them to make their stand clear on the question of whether reservation should continue to remain within the 50% boundary or not.
- The Constitution Bench decided to start the hearing from March 15, giving time for the other States to prepare their arguments.
- The court framed a series of questions, which include whether the Indira Sawhney verdict of 1992, fixing 50% limit on quota, needs to be relooked by a larger Bench of more than nine judges.
Mandating 50% shall be the new rule.
- Another question is whether the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018, which provides 12% to 13% quota benefits for the Maratha community, thus taking the reservation percentage in the State across the 50% mark, was enacted under “extraordinary circumstances”.
- The Indira Sawhney judgment had categorically said “50% shall be the rule, and only in certain exceptional and extraordinary situations for bringing far-flung and remote areas population into mainstream the said 50% rule can be relaxed”.
- The court will also examine whether the Maharashtra State Backward Classes Commission had made up a case of “extraordinary circumstances” of deprivation suffered by the Maratha community, requiring the helping hand of reservation even at the cost of crossing the 50% line.
In fact, the Bombay High Court had, in June 2019, reduced the quantum of reservation for Marathas from the 16% recommended by the Gaikwad Commission to 12% in education and 13% in employment.
Constitution (One Hundred Second Amendment) Act of 2018
- A significant question the Bench wants to judge is whether the Constitution (One Hundred Second Amendment) Act of 2018, which introduced the National Commission for Backward Classes (NCBC), interferes with the authority of the State legislatures to provide benefit to the social and educationally backward communities in their own jurisdiction.
- The Constitution Amendment Act had introduced Articles 338B and 342A in the Constitution. Article 338B deals with the NCBC.
- Article 342A empowers the President to specify the socially and educationally backward communities in a State.
- It says that it is for the Parliament to include a community in the Central List for socially and backward classes for grant of reservation benefits.
- The court wants to delve into the issue whether Article 342A strips the State legislatures of their discretionary power to include their backward communities in the State List.
History of Reservation in India
- After independence, initially reservations were provided only for SCs and STs.
- OBCs were included in the ambit of reservation in 1991 on the recommendations of the Mandal Commission.
- In the Indra Sawhney Case of 1992, the Supreme Court while upholding the 27 percent quota for backward classes,struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.
- Supreme Court in the same case also upheld the principle that the combined reservation beneficiaries should not exceed 50 percent of India’s population.
- The concept of ‘creamy layer’ also gained currency through this judgment and provision that reservation for backward classes should be confined to initial appointments only and not extend to promotions.
- The Constitutional (103rd Amendment) Act of 2019 has provided 10% reservation in government jobs and educational institutions for the “economically backward” in the unreserved category.
- The Act amends Articles 15 and 16 of the Constitution by adding clauses empowering the government to provide reservation on the basis of economic backwardness.
- This 10% economic reservation is over and above the 50% reservation cap.
Constitutional Provisions Governing Reservation in India
- Part XVI deals with reservation of SC and ST in Central and State legislatures.
- Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST.
- 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.
- Constitutional 81st Amendment Act, 2000 inserted Article 16 (4 B) which enables the state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year.
- 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.
- rticle 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.
Judicial Scrutiny of Reservation
1. The State of Madras v. Smt.Champakam Dorairajan (1951) case was the first major verdict of the Supreme Court on the issue of Reservation.The case led to the First amendment in the constitution.
- The Supreme Court in the case pointed out that while in the case of employment under the State, Article 16(4) provides for reservations in favour of backward class of citizens, no such provision was made in Article 15.
- Pursuant to the Supreme Court’s order in the case the Parliament amended Article 15 by inserting Clause (4).
2. In 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 Parliament responded by enacting 77th Constitutional Amendment Act which introduced Article 16(4A).
The article confers power on the state to reserve seats in favour of SC and ST in promotions in Public Services if the communities are not adequately represented in public employment.
3.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:
The SC and ST community should be socially and educationally backward.
The SC and ST communities are not adequately represented in Public employment.
Such reservation policy shall not affect the overall efficiency in the administration.
4. In Jarnail Singh vs Lachhmi Narain Gupta case of 2018, 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.
In May 2019 the Supreme Court upheld the Karnataka law that allows reservations in promotions for SCs and STs with consequential seniority.
- The decisions would also have relevance to the legal challenge to the introduction of the 10% quota for the economically weaker sections among those who do not fall under any reservation category.
- By this move, the Centre has already exceeded the 50% limit, and at present, only 41% of seats or posts are meant for open competition in central employment and educational institutions.
- State governments must consult the National Commission for Backward Classes on all matters of policy concerning socially and educationally backward classes.
- Tamil Nadu law, which was subsequently included in the Ninth Schedule of the Constitution (by which the Act would be beyond judicial review on the ground of violation of anyone’s fundamental rights) has been separately challenged before the Supreme Court, the removal of the ceiling would be a major victory for the State.