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DAILY NEWS ANALYSIS

  • 09 March, 2021

  • 15 Min Read

Reservation issues in India

Reservation issues in India

  • The Supreme Court on Monday decided to examine whether its nearly three-decade-old judgment which fixed reservation for the marginalised and the poor in government jobs and educational institutions at 50% needs a relook.
  • In 1992, a nine-judge Bench of the court had drawn the “Lakshman rekha” for reservation in jobs and education at 50%, except in “extraordinary circumstances”.
  • However, over the years, several States, such as Maharashtra and Tamil Nadu, have crossed the Rubicon and passed laws which allow reservation shooting over 60%.

Maratha quota law

  • A five-judge Bench, led by Justice Ashok Bhushan, set up to hear the challenge to the Maratha quota law, decided not to confine the question of reservation spilling over the 50% limit to just Maharashtra.
  • The Bench expanded the ambit of the case by making other States party and inviting them to make their stand clear on the question of whether reservation should continue to remain within the 50% boundary or not.
  • Justice Bhushan, leading the Constitution Bench, decided to start the hearing from March 15, giving time for the other States to prepare their arguments.
  • The court, meanwhile, framed a series of questions, which include whether the Indira Sawhney verdict of 1992, fixing 50% limit on quota, needs to be relooked by a larger Bench of more than nine judges.
  • Another question is whether the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018, which provides 12% to 13% quota benefits for the Maratha community, thus taking the reservation percentage in the State across the 50% mark, was enacted under “extraordinary circumstances”.

The Indira Sawhney judgment had categorically said “50% shall be the rule, and only in certain exceptional and extraordinary situations for bringing far-flung and remote areas population into mainstream the said 50% rule can be relaxed”.

1992 Indra Sawhney Case:

  • 1st time Creamy Layer & Means test concept came as people who are socially, educationally and economically advanced than other SC/STs.
  • Indra Sawney upheld Mandal commission recommendation to give 27% reservation to OBCs but it held Creamy layer should be excluded and economic criteria should be adopted.

Mandal Commission Recommendations

  • Reservation of 27% public sector and government jobs for OBCs for those who do not qualify on merit.
  • Reservation of 27% for promotions at all levels for OBCs in public service.
  • The reserved quota, if unfilled, should be carried forward for a period of 3 years and deserved after that.
  • Age relaxation for OBCs to be the same as that for SCs and STs.
  • A roster system should be prepared for the backward classes on the pattern of that for the SCs and STs.
  • Reservations to be made in PSUs, banks, private sector undertakings receiving government grants, colleges and universities.
  • The government to make the necessary legal provisions to implement these recommendations.

  • It upheld reservations only in Initial appointments and not promotions.

77th Constitutional Amendment Act, 1995

  • But Center (through 77th Amendment, 1995) introduced Article 16 (4A) to overcome it and extended quota for SC/ST in promotions as their representation in State's services has not reached the required level.
  • Article 16 (4B) was also introduced to carry forward unfilled vacancies and 50% cap doesn't apply here.
  • Article 335 was also amended in 2001 to allow relaxations in qualifying marks & lowering standards in favor of SC/STs.
  • SC/STs are most backward among Backward classes. Once part of the Presidential list under Article 341 & 342, there is no question of showing their backwardness again.

M Nagraj case (2006):

  • It laid down 3 conditions for promotions of SC/ST in public Employment.
  • Government can only introduce quota in promotions for SC/ST if the States show quantifiable data to prove 'Backwardness' of SC/ST.
  • It upheld Creamy layer for SC/ ST in promotions.

Jarnail Singh Case (2018):

  • It upheld the Creamy layer Principle to affluent SC/STs as the right to equality but doesn't tinker with Presidential list under Article 341 or 342.
  • It said Nagraj was wrong to require demonstration of backwardness for SC/STs. It favoured applying 'means test' for Creamy layer.
  • Creamy layer ensures that only the deserving among the SC/STs get the benefits of reservation.
  • Center has accepted Creamy layer Principle but not for Dalits. Thus, Government has called upon SC To form a 7 judge bench to reconsider the M Nagraj case (2006) which said that it should be applied to SC/ST communities.
  • Another issue is whether the Advanced SC/ST sections can be disallowed only for promotions. Because Most of them may not fall under 'Creamy layer' category at the entry level but after some years of service & promotions, they will become. This will defeat the purpose.

Conclusion

  • Reservation is not an anti-poverty programme. There is also an example where with reservation, the discrimination actually increases with a rise in economic position.
  • Reservation for Dalits is not as much as of economic backwardness as much as it is on account of stigma of oppression.
  • Under SC and ST (Prevention of Atrocities) Act and the Protection of Civil Rights Act, it is the Govt's responsibility to undertake a study every 5 years to bring out nature of discrimination and untouchability by Dalits.

Source: TH


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