Context

Jarnail Singh judgment authored by Justice RohintonNariman indicates a critical turn in the jurisprudence of reservation.

• It relies on the healthy coexistence of guaranteed equality of opportunity in publicemployment and facilitating provisions, vesting discretion on the government to consider providing reservations to the vulnerable section of the society.

About

Origin of reservation in Public employment

• The idea of reservation policy in India was originally developed by William Hunter and JyotiraoPhule in the year 1882.
• The basic principle behind the reservation was the Caste System and the malpractice of untouchability in India.
• But the prevailing reservation system in today's India was introduced in 1933 by British Prime Minister Ramsay Macdonald in the form of the 'Communal Award.
• The Mandal Commission: The recommendation of Mandal Commission (1980) to provide 27% reservation to Other Backward Classes in central services and public sector undertakings, over and was assailed in the Supreme Court resulting in the historic ‘IndraSawhney Judgment (1992)’.
• The constitutionality of the 27% reservation was put a ceiling of 50% unless exceptionalcircumstances warranting the breach, so that the constitutionally guaranteed right to equality under Article 14 would remain secured.

About the Jarnail Singh judgment

• The jurisprudence of reservation relies on the symbiotic coexistence of constitutionally guaranteed equality of opportunity in public employment under Article 16 (1) of the Constitution of India.
• It is a settled law that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution, rather they are enabling provisions for providing reservation, if the circumstances so warrant.

Constitutional backing Reservation is not a Fundamental Right: It is a settled law that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution, rather they are enabling provisions for providing reservation, if the circumstances so warrant. Under Article 15(4) it provides that:Nothing shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribe. Article 46 that mandates that the state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular Scheduled Castes and Scheduled Tribes. The Constitution (Seventy-seventh Amendment) Act, 1995: By the Constitution (Seventy-seventh Amendment) Act, 1995, which, Article 16(4-A), was inserted to provide that "nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State". Later two more amendments were brought, One to ensure consequential seniority (Article 16(4 A)) and; Another to secure carry forward of unfilled vacancies of a year (Article 16(4 B).)

Other Major judgments and interpretations

• The Constitution Bench Judgment in M. Nagaraj (2006): A five-judge bench of Supreme Court declared the 1995 amendment as not vocative of basic structure of the Constitution but laid down certain conditions which included the collection of “quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment”
• Jarnail Singh vs LachhmiNarain Gupta (2018): The constitution bench invalidated the requirement to collect quantifiable data in relation to Scheduled Castes and Scheduled Tribes but upheld the principle of applicability of creamy layer in relation to Scheduled Castes and Scheduled Tribes.
• The Constitution (103rd Amendment) Act, 2019: The 10% reservation for Economically Weaker Sections (EWS), other Scheduled Castes, Scheduled Tribes and backward classes for government jobs and admission in educational institutions is currently under challenge before the Supreme Court which has referred the same to a constitution bench. 
• DR.JaishriLaxmanraoPatil vs Chief Minister (2021): Despite the IndraSawhney ruling, there have been attempts on the part of many States to breach the rule by way of expanding the reservation coverage and the Maharashtra Socially and Educationally Backward Classes Act 2018, (Maratha reservation law) came under challenge before the Supreme Court which referred the same to a bench of five judges and one question was whether the 1992 judgment needs a relook.
  • The Supreme court had shutdown 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 respectively, citing the breach of ceiling. 

Pros and Cons of Reservation

• Pros:
  • It ensures diversity in advanced education, equality in the workplace and offers protection from hatred.
  • It helps in the emancipation of disadvantaged individuals and thereby promotes equality for all.
  • It breaks stereotypes regarding caste, religion, and ethnicity.
  • It increases social mobility.
  • It is needed to compensate for centuries of oppression and discrimination and provides level-playing fields.
  • It seeks to bring equity in society by addressing 'graded inequalities'.
• Cons:
  • There are concerns that lead to erosion of meritocracy.
  • It can still reinforce stereotypes as it demeans the achievements of marginalized sections.
  • People coming under the ambit of reservation, their success is labelled as a result of Reservation, instead of their capabilities and hard work.
  • There are concerns that reservation can serve as a medium for reverse discrimination.
  • Reverse discrimination is discrimination against members of a dominant or majority group, in favour of members of a minority or historically disadvantaged group.
  • Due to vote bank politics, even after discrimination issues have been diminishing, it is difficult to withdraw the reservation.