The Supreme Court recently decided to examine whether the 1992 verdict by a nine-judge bench capping quota at 50% needed to be revisited in view of subsequent constitutional amendments and changed social dynamics.
The ceiling was imposed by a nine-judge Constitution Bench in the Indira Sahwney case in 1992, also called the Mandal verdict.
States were also asked to respond to a 2018 Constitution (102nd Amendment) Act, which gave constitutional recognition to National Commission for Backward Classes.
Article 342A was introduced via the amendment, through which the competence of states to make laws on reservation for backward classes was taken away.
In this episode, we will discuss and analyse all aspects of reservation and related issues from UPSC perspective.
Edited Excerpts from the debate
Understanding the 1992 Judgment
In, the 1992 Indra Sawhney versus Union of Indiacase, known as the Mandal judgment, a nine-member Constitution bench of the Supreme Court determined the judicial contours of the debate on reservation, by placing a cap of 50% on quotas.
Citing Ambedkar and the Constituent Assembly, it held that reservation in a majority of seats “was never envisaged by our founding fathers”.
At the same time, it left a loophole, stating that given the great diversity in this country, where people living in remote and far-flung areas could fall out of the mainstream of national life, a relaxation can be made.
But it warned: “In doing so, extreme caution is to be exercised and a special case made out.”
Mandal Commission was established to assess the situation of the socially and educationally backward.
The commission did not have exact figures for a sub-caste, known as the Other Backward Class (OBC), and used the 1930 census data, further classifying 1,257 communities as backward, to estimate the OBC population at 52%.
In 1980, the commission submitted a report, and recommended changes to the existing quotas, increasing them from 22% to 49.5%.
What major issues are likely to be reconsidered?
In the Indira Sahwney verdict, there were various issues, which are likely to be reconsidered such as:
50% ceiling: In the Indira Sahwney verdict, the SC had held that the reservation shall not exceed 50%.
Reservation in promotion: There were also the issue of reservation in promotion, which the SC said, there shall be no reservation provision in promotion.
Introduction of creamy layer: There were several other issues which the Indira Sahwney judgment dealt with such as ‘the introduction of the concept of creamy layer’. Thereafter, in several cases, the SC has said that same principle applies to not just OBCs reservation, it should also apply for reservation of SCs and STs. However, it has not been done so far.
The issues of 50% ceiling, reservation in promotion, creamy layer are likely to be reconsidered. The five-judge Bench will decide whether the issue needs to be reconsidered. In case they decide to reconsider, the matter will go to a larger Bench.
Legal issues for reconsideration
The legal issues framed by the court for consideration:
Whether Indira Sawhney case verdict needs to be referred to larger bench for relook?
Whether the Maharashtra reservation law is covered by exceptional circumstances as was contemplated in Indra Sawhney case?
Whether the 102nd Amendment deprives state legislatures the power to enact a legislation determining the socially and economically backward classes?
Whether states’ power to legislate in relation to any backward class under Articles 15(4) and 16(4) is abridged by Article 342(A) read with Article 366(26c)?
Whether Article 342A abrogates states power to legislate in respect of “any backward class of citizens” and affects the federal policy structure?
The Constitutional Amendments in Question
The top court will examine the question of interpretation of the
102nd amendment to the Constitution dealing with reservation to a particular community, named in the list prepared by the President. It inserted
Article 338B (deals with the structure, duties and powers of National Commission of Backward Class)
Article 342A (power of the President to notify a particular caste as Socially and Educationally Backward Class (SEBC)) and the power of Parliament to change the SEBC list.
What is the present issue?
The current issue before the SC is the Maharashtra Government decision to grant reservation to Marathas.
In fact, the state government has already decided to grant 16% reservation to them.
The Bombay High Court, while upholding the law in June 2019, had held that 16 per cent reservation was not justifiable and the quota should not exceed 12 per cent in employment and 13 per cent in admissions.
The high court had said that the 50-per-cent cap on total reservations imposed by the Supreme Court could be exceeded in exceptional circumstances.
What is the need to relook?
The main issue which has arisen here is exceeding of the 50% ceiling quota of reservation by the states.
Maharashtra is not the only state to exceed the ceiling for the first time. Since 1992, many states have passed laws breaching the limit of 50%. For example: Maharashtra, Telangana, Andhra Pradesh, Madhya Pradesh, Rajasthan and others.
Reservations were introduced as a kind of affirmative action for those historically oppressed and made outcasts, and they undoubtedly have had visibly positive results in many cases. But politicization has eroded the best effects. Revisiting the 1992 judgment to reconsider the ceiling and exceptional circumstances can be fruitful and just.
What are Reservations?
The reservation policy is an age-old policy being practiced in India.
Its origin has its roots scattered from the ancient times when the practice of ‘untouchability’, caste system and Varna system was dominant in the society.
Deprivation is only one measure of caste discrimination in India.
Reservations for the SCs and STs were put in place in the Indian constitution, immediately after independence, as a means to recognise the historical injustice meted out to these groups and to implement provisions by which groups would have better access to resources and opportunities that were hitherto denied to them.
History of Caste-Based Reservations in India:
Reservation Policy in Pre- Independence Era:
Government India Act, 1919: The Government India Act, 1919 not only introduced several reforms for the Indian Governmental institutions but also addressed many issues of minorities including the formation of communal electorates.
MacDonald Award: A significant one emerged from the Round Table Conference of June 1932, when the Prime Minister of Britain, Ramsay MacDonald, proposed the Communal Award, according to which separate representation was to be provided for Muslims, Sikhs, Indian Christians, Anglo-Indians, and Europeans.
Government of India Act, 1935: The stamping of the provisions of the Poona Pact, 1932 were done in the Government of India Act of 1935 where reservation of seats for depressed classes was allotted.
Post- Independence Era:
In Post- Independence era, the scenario changed and the reservation policy gained even more momentum than the pre-independence era.
The Constituent assembly chaired by Dr. B.R Ambedkar framed the reservation policy and many Articles in the Indian Constitution were dedicated for the same.
What are the provisions in the Constitution that enable reservation/quota?
Article 14 guarantees equality and equal protection of law to all.
Articles 15 (1) and 15 (2) prohibit the State from discriminating any citizen on ground of religion, race, caste, sex, or place of birth.
But clauses (3) to (5) of Article 15 empower the State to positively discriminate in favour of the grossly underrepresented and neglected sections of the society in order to promote substantive equality.
Article 15(3) empowers the State to make special provisions for women and children while Article 15(4) authorises the State to make special provisions for advancement of socially and educationally backward sections or SC/STs.
Article 15(5) goes one step further and says the State can make reservation in admission to education institutions, whether or not aided by government.
Similarly, Articles 16 (1) and 16(2) lay down that the State cannot discriminate against citizens in the matters of employment.
However, clause 3 of Article 16 allows Parliament to enact a law with residence qualifications necessary for government jobs, thus introducing the domicile-based preferential treatment.
Article 16(4) also allows the State to make reservation for any backward class of citizens, which in the opinion of the state is not adequately represented in services. This opens door for reservations for Other Backward Classes (OBCs).
Article 16(4A) was incorporated permitting reservation in promotions but restricting the same to Scheduled Caste (SC) and Scheduled Tribes (ST).
After the Constitution (103rd Amendment) Act, 2019, clauses 6 and Articles 15 and 16 were inserted to provide for a further 10% reservation in jobs and educational institutions to economically backward sections in the general category.
Some more articles that cover the reservation policies are:
Article 17which talks about abolition of untouchability.
Article 39A in the directive principles of state policies which ensure equal justice to all.
Article 45 which imposes a duty on the state to maintain standards of living.
Article 332, 342 also talks about special provisions for different classes of people, like scheduled caste, scheduled tribe, minority, etc.
Current scenario of Reservation
The Supreme Court ruling that reservations cannot exceed 50% (which it judged would violate equal access guaranteed by the Constitution) has put a cap on reservations.
The current scenario of Reservation in India is:
15% seats are reserved for Scheduled Castes (SC).
5% seats are reserved for Schedule tribes (ST).
27% seats are reserved for Other backward classes (OBC).
Can a law be framed for reservation on domicile?
Yes, but only by the Parliament.
Article 16(3) in the Constitution empowers Parliament to provide for domicile-based reservation in public employment and jobs with local or any other authority under a state or a Union Territory.
Important Committees and Commissions:
Hunter Commissions: In 1882, the Hunter Commission was appointed. Mahatma Jyotirao Phule made a demand for free and compulsory education for all along with proportionate reservation/representation in government jobs.
Kelkar Commission: In 1953-Kalelkar Commission was established to assess the situation of the socially and educationally backward class. The report was accepted as far as Scheduled Castes and Scheduled Tribes were concerned. The recommendations for OBC’s were rejected.
Sachar Committee (2003): The Sachar Committee headed by Justice Rajinder Sachar, was appointed for preparation of a report on the social, economic and educational status of the Muslim community of India.
This 7-member High-Level Committee, popularly known as Sachar Committee, gave its report in November 2006 – and it clearly found that the Muslim community was really “seriously lagging behind in terms of most of the human development indicators.”