Issue Of Reservation And Article 15 And 16 Of Constitution

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By admin June 14, 2019 12:59

The relation between article 14, 15 and 16 are individual-centric, guarantee formal equality. These articles work against some issue of reservation and certain identity-based classifications.

Whereas clauses (3) to (5) of Article 15 and Article 16 intend to promote substantive equality. These clauses provide a mechanism for positive discrimination in favour of the grossly under-represented and neglected sections of the society.

All these articles are group centric.

Evolution of article 15

In State of Madras v. Champakam Dorairajan, Supreme Court held that Madras governments decision to provide caste-based reservation in government jobs and college seats was in violation of Article 16 (2) of the Indian Constitution.

This judgment led to the 1st constitutional amendment in 1951, resulting in the introduction of the Art. 15 (4).

First landmark judgment that came out was M.R. Balaji and Ors. v. State of Mysore [1963]. This judgment came against the order of the state of Mysore, providing as much as 75% reservation.  SC in this judgment strike down the order and enunciated the following principles:

Article 15(4) is an exception to article 15 (1) and article 29 (2).

Caste cannot be the sole and dominant test for determining social backwardness.

The reservation made under Article 15(4) should be reasonable and less than 50%.

Indra Sawhney v. Union of India

In 1979 Morarji Desai govt formed Mandal commission to look into the job opportunities for backward classes. On this basis, 27% reservation was allocated to OBC communities. This decision of the government was challenged in SC in the case Indra Sawhney v. Union of India, also known as Mandal Commission Case.

in this case, the Nine-Judge Bench of the Supreme Court enumerated the following essential points:

  • The government held the government decided to allocate 27% reservation to backward classes valid.
  • SC also fixed a ceiling on the maximum reservation at 50%.
  • Reservation to socially and educational Backward people will subject creamy layer criteria.
  • SC also held that reservations for poor among forwarding castes on the basis of economic conditions is invalid.
  • It also observed that reservation under Article 16(4) — which allows the state to make provisions for “reservation of appointments or posts in favour of any backward class of citizens”, did not apply to promotions.

To reduce the effects of Indra Sawney judgment government came  up with few constitutional amendments

Constitutional 77th and 81st amendment acts

  • In order to nullify the effects of Indra Sawney judgment, Parliament enacted Constitution (77th Amendment) Act, 1995.

Amendment inserted clause (4A) after clause 4 of Article 16 of the Constitution of India.  Clause (4A) provides for giving the benefit of promotion in service to the Scheduled Castes and the Scheduled Tribes.

  • Constitutional 81st amendment act inserted Article 16(4B) in the constitution.

Article 16(4B) provides that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the subsequent year. It ensured that the ceiling on the reservation quota – capped at 50% by Indra Sawhney – for these carried forward unfilled posts, does not apply to subsequent years.

  • Constitution 82nd amendment act inserted in article 335

“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.

  • The constitutional 85th amendment changed the words ”in matters of promotion to any class” to the words ”in matters of promotion, with consequential seniority, to any class”.

Nagaraj judgment

In this case, the Supreme Court upheld the constitutional validity of the 77th, 81st, 82nd, and 85th Amendments, however, certain riders were also laid down.

This judgment held that:

50% ceiling limit is valid.

But with the extension of reservation, the concerned State will show in each case the existence of the compelling reasons, namely:

  • backwardness,
  • inadequacy of representation and
  • overall administrative efficiency before making provision for reservation.

It’s not mandatory for the states to make a reservation in the matter of promotion for SCs and STs and is they wish to do so; states must collect quantifiable data showing:

  • the backwardness of the class
  • inadequacy of representation of that class in public employment in addition to compliance of Article 335.

The 103rd constitutional amendment act

  • It provides for the reservation to economically weaker sections from the upper castes over and above the existing reservation subject to a maximum limit of 10%.
  • It provides for reservation of jobs in central government jobs as well as government educational institutions.
  • It is also applicable on admissions to private higher educational institutions.
  • Article 15 (6) is added to provide reservations to economically weaker sections for admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.
  • Article 16 (6) is added to provide reservations to people from economically weaker sections in government posts.

Why the Supreme Court did not intervene on breach of 50% ceiling?

  • It is important to note that previous ruling in the Indra Sawhney case and M.R Balaji case were given in relation to a law or subordinate legislation. Whereas the present reservation has been provided through a constitutional amendment.
  • None of the above-mentioned judgement discarded a law based upon the violation of basic structure.
  • There is nothing mentioned explicitly in the existing articles 15(4), 15(5) and 16(4) of the constitution regarding the 50% ceiling.
  • Moreover, it is quite difficult to turn down the amendment bill on the basis of violation of basic structure as it is promoting the concept of equality.

Promotion in reservation

2018 case of the case of Jarnail Singh vs Lachhmi Narain Gupta allowed Union government to go ahead with reservation in promotion for employees belonging to the SC and ST category in “accordance with law”.

The bench held that Nagaraj’s insistence on the collection of quantifiable data on backwardness in relation to the SCs and STs was contrary to Indra Sawhney. Thus, it nullified the first condition.

But bench approved Nagaraj’s insistence on

  • proof for the inadequate representation of classes for whom promotional posts are reserved, and
  • Submission of additional proof that efficiency would not be impacted by such reservation.

In this case, the bench also held that creamy layer principle is an essential aspect of the equality code, and therefore, exclusion of creamy layer while applying the principle of the reservation is justified, even in the case of SCs and STs.

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SOURCE:-

https://www.iitr.ac.in/internalcomplaintscommittee/annexure.pdf

https://www.thehindu.com/news/national/Haji-Ali-Dargah-issue-SC-extends-HCs-stay-order-till-Oct.-17/article15474877.ece

https://indconlawphil.wordpress.com/tag/substantive-equality/

https://indconlawphil.wordpress.com/tag/article-15/

 

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By admin June 14, 2019 12:59