Article15 which states ”State shall not discriminate against any citizen on the ground of religion, race, caste, sex, place of birth or any of them” AND reservation is exception of Article15 clauses(1) and clause(2) which was inserted by the constitutional 1st amendment act 1951.
Need of reservation
1) to correct historical injustice faced by backward castes
2) to provide a level playing field for backward sections as they cannot compete with those who have had the access of resources and means for centuries.
3) To ensure adequate representation
4) For advancement
5) To ensure equality as the basis of meritocracy.
Extent of reservation in India
1. Government educational institutes
2. Government jobs
Constitutional provisions governing reservation of India.
Article 15(4) and Article 16(4) of the constitution deals with reservation of backward classes, SC and ST in state and central legislature.
Article15(4):- nothing in this Article or clause(2) of Article29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for scheduled caste and scheduled tribe. It is not an exception but only makes a special application of principle of reasonable classification.
Under clause 15(4), two things are to be determined:-
1. Socially and educationally backward classes
2. The limit of reservation
Backward classes are not defined in the Constitution. Article 340 however empowers the president to appoint a commission to investigate conditions of socially and educationally backward classes. on the basis of the report of commission, the president may specify as to who are considered to be backward classes.
BACKWARD AND MORE BACKWARD CLASS
Leading case:- BALAJI VS STATE OF MYSORE
The Mysore govt. issued an order under Article15 (4) reserving seats in the medical and engineering college in the state as follows;- backward classes 28%, more backward class 20%, SC & ST 18%.thus 68% of the seats available in the college is reserved and only 32% seats were made available to the merit pool. Some of the candidates had secured more marks than those admitted under the reservation order but they failed to get admission only because of the government order. The court held that the sub classification made by order between ‘backward classes’ and ‘more backward classes’ was not justified.
Under Article 15(4) “backwardness” must be both social and educational and not either social or educational. Though caste may be a relevant factor, it cannot be the sole test for ascertaining whether a particular class is backward class or not. Poverty, occupation, place of habitation may all be relevant factors to be taken into consideration.
Article 15(4) does not speak of “castes” but only speaks “classes” and ‘caste’ and ‘class’ are not synonymous.
The state would not be justified ignoring the advancement of the rest of the society in its zeal to promote welfare of the backward class. National interest would suffer if qualified and competent students were excluded from admission in institutions of higher education. Speaking generally, the special provision should be less than 50%, how much less than 50% would depend upon the relevant prevailing circumstances in each case.
Leading case;- Indra Sawhney vs union of India
It is also known as Mandal commission case, the sub classification of backward classes into more backward classes for the purpose of Article 16 (4) can be done but as a result of sub classification the reservation must not exceed 50%.the distinction should be on the basis of degrees of social backwardness. The interpretation is equally applicable to Article 15(4) as the words ‘backwardness of citizen’ in Article 16 (4) are wider includes SC & ST and other socially and educationally backward classes also. Caste included in backward class
In Periakaruppan vs state of Tamil Nadu supreme court held that classification of backward classes on the basis of castes is well within the overview of Article 15(4) provided those caste are shown to be socially and educationally backward. But the court advised that the government should not proceed on the basis once a class is considered as backward, it should continue backward class for all the time. Such an approach would defeat the very purpose of reservation. The govt. should always keep under review the question of reservation of seats and only classes which are really, socially, and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should not allow vested interest. A caste is also a class of citizens which may as such be socially and educationally backward. Poverty cannot be the basis of reservation.
In K.S Jayasaree vs state of Kerala the state of Kerala appointed a commission to inquire into and to report as to what sections of the people in Kerala should be treated as socially and educationally backward classes. On the basis of the report of the commission, the govt.
directed that candidates belonging to families whose annual income was rs1000 or above would not be eligible for seats reserved for backwardness in medical colleges. The supreme court upheld the government’s direction and held ‘neither caste by itself, nor poverty by itself is the determining factor of socially backwardness.
Though poverty is not the sole test of backwardness yet it is a relevant factor in the context of social backwardness. Thus, both caste and poverty are relevant in determining the backwardness of citizens.
HIGH CASTE GIRL MARRYING SCHEDULED TRIBES, NOT ENTITLED TO
BENEFIT:- In Dr. Neelima vs Dean of P.G studies A.P. agriculture university it has been held that a high caste girl marrying a boy belonging to scheduled tribe is not entitled to the benefit of reservation available to scheduled tribes. The appellant was born in a reddy caste which is a forward class and married to an Erukala tribe boy. After marriage she sought education in an MSC course in agriculture university, Hyderabad under reservation quota for ST. the court held that she is not entitled to get the benefit of reservation available to the scheduled tribes.
RELAXATION IN MINIMUM QUALIFYING MARK FOR ADMISSION OF SC & ST
In the case state of M.P. vs Nivedita Jain. The total no. of seats in six medical colleges of state were 720, out of which 15% seats were reserved for each category. according to rule 20 that empowers the state to grant relaxation in the minimum qualifying marks to the extent considered necessary. The minimum qualifying marks for admission was 50% in aggregate and 33% in each subject separately but for SC and ST it was only 40% and 30% respectively. In all 9400 candidates appeared in the test out of which 623 belong to SC and ST, on the result pre medical examination only 18 seats of SC and 2 seats for ST could be filled up because the other candidates could not secure qualifying marks prescribed by rule 20. Thereafter the board made relaxation of 5% more in favour of these categories of students but in spite of this only 25 seats of SC and 3 seats of ST could be filled. Thus, a large no. of seats remained unfilled after the second relaxation. Thereafter the government. issued the impugned order completely relaxing the minimum qualifying marks for these two categories. The relaxation made by the govt. in favour of SC and ST candidates for admission into medical colleges cannot be unreasonable and violative of Article 15(4). The supreme court overruled the full bench decision of Patna high court in Amelendu kumar vs state of Bihar where it was held that reduction of qualifying marks in favour of SC and ST by executive order first from 45% to 40% and subsequently 35% on the ground of that the seats reserved for these categories would remain unfilled was violative of Article 15(1) and hence unconstitutional.
MERIT, NOT QUOTA TEST FOR ADMISSION IN SUPER SPECIALITY COURSES IN MEDICAL AND ENGINEERING
It will not be possible for such candidates to fully benefit from the very limited and specialized post graduate training opportunities which were desired to produce high caliber well trained professionals for the benefits of the public. admissions to the highest available medical courses in the country at the super speciality level , where even the facilities of training are limited must be given on the basis of competitive merit. The object 15(4) is to advance the equality principle by providing for protective discrimination in favour of the weaker section so that they may become stronger and be able to compete equally with others. One cannot ignore the wider section of society while devising such special provision.
MANDAL COMMISSION :
1) The commission was formed to determine the criteria for defining India’s “socially and educationally classes” and to recommend steps to be taken for the advancement of those classes.
2) The Mandal commission concluded that India’s population consisted of approx.
52% O.B.C therefore 27% government jobs should be reserved for them.
3) The Mandal commission case the supreme court held that there can be no reservation to other backward classes in higher educational institute and post
graduate level in the universities. But this ruling of Mandal commission has been given burial, by the constitutional 93rd amendment act 2005.
4) Meritorious reserved category candidate to be treated as part of the general category but can opt the seat earmarked for reserved category.
Leading case :- Tripurari sharan vs ranjit kumar yadav
The supreme court held that the admission for MBBS or BDS course and P.G courses through common admission test, the meritorious reserved candidate (MRC) who obtains more than the last general merit candidate and opted seat of reserved category candidate in college would be treated as a general category candidate. Only a choice of candidate seat in reserved category is opened to him. The number of seats in each category would remain
the constant and upper limit of 50% reservation would not be breached. A M.R.C taking admission from category of reserved candidates can opt for a seat earmarked for reserved category so as to not disadvantage him against less meritorious reserved category. due to M.R.C.s choice, one reserved category seats occupied and one seat among the choices available to general category candidate remain
5) By 93rd amendment act 2005, the state couldn’t make reservation of seats in admissions in private educational institutions. The admission should be done on the basis of merit
6) O.B.C. reservation in higher educational Institute is constitutional. however the benefit of reservation could not be made available to creamy layer candidates. The reservation must be reviewed after every 5 year.
Article 330 and 332 provide specific reservation through reservation seats for SC and ST in the parliament and in the state legislative assembly respectively.
Article 243D provides reservation of seats for SC and ST in every Panchayat.
Article 233 provides reservation of seats for SC and ST in every municipality.
Article 335 of the constitution says that the claim of ST and SC shall be taken in consideration constituently with the maintenance of efficacy of the administration.
ECONOMICALLY WEAKER SECTION (EWS)
The constitutional 103rd amendment act 2019 has inserted clause (6) in Article 15 that states:
Any special provision for the advancement of any economically weaker section of citizens other than the clauses mentioned in clauses (4) and clause(5) in so far as such special provision can relate to their admission in educational institution including private educational institution weather aided or unaided by the state other than the minority educational institutions referred in clause (1) of article 30 , which in the case of reservation and subject to maximum of 10% of total seats in each category.
For the purpose of this Article and Article 16 ‘economically weaker section’ shall be such as may be notified by the state from time to time on the basis of family income and other indicators of economic disadvantage.
ARTICLE 16 (4)
It enables the state to make provision for the reservation post in govt. jobs in favour of any backward classes of citizens which in the opinion of the state is not adequately represented in the service of state. The newly added clause 4-A added by 77th amendment act 1995 empowers the state to make any provision for reservation in matters of promotions for SC& ST which in the opinion of the state are not adequately represented in the services under the state. The constitutional 81st amendment act 2000 has added new clause 4B which seeks to end the 50% limit for SC & ST and other backward classes in backlog vacancies which could not be filled up due to non availability of eligible candidates of these categories previous year.
The issue of reservation has remained a cause of disagreement between the reserved and the non reserved sections of the society. While the unreserved segments keep on opposing the provision, the neediest sections from within the reserved segment are hardly aware about how to get benefited from the provision or even whether there are such provisions. On the contrary the creamy layer among the same segment is enjoying special privileges in
the name of reservation and political factions are supporting them for vote banks. Reservation is no doubt good, as far as it is a method of appropriate positive discrimination for the benefit of downtrodden and economically backward section of the society but when it tends to harm the society and ensure privileges for some at the good cost of others for narrow political ends, as it is in present form, it should be done away as soon as possible.
ABOUT THE AUTHOR:
Hifza Khatoon (Deen Dayal Upadhyay, Gorakhpur University)