Reservation: The Nuances

Reservation: The Nuances

The Union Cabinet on Monday January 8, has approved Constitution Amendment Bill for giving 10 % reservation to economically backward section in the general category and bill will be extended to Muslim, Sikh, Christian, Buddhist and other Minorities Community. For this, the government has increased the session of the Rajya Sabha.

Logic behind the Government's decision many political analysts are assessing the recent elections for the three state assemblies (Rajasthan, Madhya Pradesh and Chhatisgarh. The ruling BJP in the center believes that due to the anger of the upper castes, they lost in these elections; And this verdict is being seen as an attempt to turn the attitude of the upper caste to its own.

Reservation Policy in India :- It is form of alternative action where % of seats are for people belonging to socially and educationally backward community and SC, STs who are inadequately represented in institution of Government Job and education.

Rational Behind the Reservation Policy in India:

To provide equality and opportunity to section which has been discriminated over the years hence to correct the historical injustice and to give effect to redistributive agenda of state reservation was introduced.

Criteria for Economically Backwardness under general categories:

·         Family income less than 8 lakh rupees annually (Creamy Layer Concept of OBC)

·         Whose agricultural land less than 5 acres

·         Residential house with less than 1000 square feet

·         Plot less than 100 yards in notified municipality

·         Residential plot limit in non-notified municipal area is 200 yards

Current Moment of Reservation:

At present there is a provision of 49.5 percent reservation and its cant beyond as per Apex Court. In this, the Scheduled Castes (SC) are given 15 percent, Scheduled Tribe (ST), 7.5 percent and 27 percent reservation for OBC.

Legal Test of Bill: Required 124^th Constitutional Amendment (The bill must be passed in each houses by an absolute majority and a two third majority of members present and voting required as per article 368 of Constitution of India).

The government has proposed to amend the Article 15 and 16 of COI through 124th Constitution Amendment Bill.

Article 15 and 16 of the Constitution

Article 15 gives equal rights to all citizens. According to Article 15 (1), the State shall not make any difference against any citizen on the basis of religion, ethnicity, caste, gender, birthplace or any of them.

As per Article 15 (4) and 15 (5), special provision has been provided for social and educationally backward classes or Scheduled Castes and Scheduled Tribes. But here the economic term has not been used anywhere. Therefore, in order to give reservations to the upper castes, the government will need a constitution amendment to add economically weaker words to this article (Insert Article 15(6).

Article 16 talks about providing equal opportunities in government jobs and services. But in the 16(4) 16(4)(a), 16(4)(b) and Article 16(5), the state has been empowered to give reservation to any sections of backward people in government jobs. There is no mention of economic also here. Therefore, in order to give reservations to poor upper caste, the government has to amend these two paragraphs of the Constitution.

Facts about the reservation:

In 1979, the Central Government formed the 6-member Backward Class Commission Under the chairmanship of the former Bihar Chief Minister BP Mandal also known as Mandal Commission. This commission gave its report in 1980.

Commission take the help of 1931 caste census to form caste for reservation. It included 3743 castes and communities, which were given the status of OBC and suggested 27 percent reservation to OBC.

On the basis of the recommendations of the Commission on August 13, 1990 a notification for giving 27 percent reservation in government jobs to backward classes was issued. The matter reached the Supreme Court among all the protests, where the Constitutional Bench with 9 judges finally upheld the decision of the Mandal Commission's recommendations on November 16, 1992. After this, the Central Government issued notification of providing 27 percent reservation to the backward classes in the jobs of the Central Government on September 8, 1993.

The Supreme Court on reservation

MR Balaji (1963): In this case of 1963, the Supreme Court ruled that the classification of backward classes was unconstitutional. The person's caste can not be the only criterion for determining whether a particular class is a backward class or not. To determine this, financial condition, poverty, occupation, housing, etc. should also be addressed.

T. Devdasan (1963): In this regard, the Supreme Court dismissed an order of government in Balaji vs. Mysore State case more than necessary in 1963. It provided reservation of 68 percent for Scheduled Castes, Scheduled Tribes and Other Backward Classes. The Supreme Court gave the order that the total reservation limit should not exceed 50 per cent.

Indira Sahni (1992): On the issue of reservation, the judgment of the Supreme Court given in this case is considered as a milestone. Supreme Court upheld the implementation of separate reservation for other backward classes in central government jobs in this case.

In this case, it was arranged for the first time that reservation in promotion for Scheduled Castes, Scheduled Tribes officers and employees would not be permissible.

The Parliament considered this and amended 77th amendment in the Constitution. In this amendment the provision was made that the State Government and the Central Government have the right to give reservations in promotions. But this case again went to the Supreme Court. Then the court gave the arrangement that reservations can be made, but seniority will not be found. After this, the 85th Constitutional Amendment was amended and it was said that the consequential seniority would also be given. In this case, the Constitutional Bench of 11 judges in the Supreme Court did not consider reservation in promotion for government services for Scheduled Caste and Scheduled Tribe under Article 16 (4) of the Constitution and ordered that the reservation in promotions to these sections would be only next It is only for 5 years.

M. Nagraj (2006): In this matter, the 77th and 85th constitutional amendments in the Supreme Court were challenged. The court considered these constitutional amendments in its decision as right, but also said that if the government wants to give reservation to the Scheduled Castes and Scheduled Tribes in the promotion, then for this backwardness of these sections, inadequate representation in the state services and the government In order to influence the work efficiency of the work, the basis should be laid by mobilizing the data.

If the state government and the central government have to give reservations in the promotion, then three things have to be taken care of –

1.  Are the people of these classes still backward or not?

2.  Is the people of this class active in the services or not?

3. If reservation is given to Scheduled Castes, tribal officials and employees in promotions, then it has to be seen that the administration will not have adverse effects?

This is not new for the government to issue of reservation in government services to economically weaker section but this is the first time when economic status of a class has been linked to the reservation.  Indeed, reservations are considered as a 'tool' for empower and uplift the socially suppressed, discriminated Dalits, Adivasis and other backward classes and get them social status and better life. since 1951 government proposed reservation as demanded and required but situations of Now and Statistics of many International Organisations shows only providing  Reservation is never considered to be a 'tool' to eliminate economic backwardness. Now the Government has taken a new initiative in this direction, then this step will be considered as fulfilling the long standing demand of a large section of society almost 90 % of the Population.