Judicial Response To Policy Of Reservations
"There is a duty cast upon us and to remember always that we are here not to function for one party or one group, but always to think of India as a whole and always to think of the welfare of the four hundred million that comprise India" - Jawaharlal Nehru
For centuries, India's social system has been set up on inequality, exploitation and injustice. Even today, India's underprivileged are subject to mass discrimination of all kinds which includes economic exploitation. Post Independence, those who framed the Constitution had back then realised the importance of social and economic justice, as they knew about the pervasive and poignant issues of poverty plaguing the nation.
"If we cannot solve this problem soon, all our paper Constitution will become useless and purposeless," Nehru had warned
It is due to this reason that the higher judiciary in India has been handed the responsibility to uphold the federal principle, interpretation of laws made by legislatures to test the Constitutional validity and safeguard the rights of Indian citizens.
In India, the powers are granted to the Supreme Court by the Constitution unlike the doctrine of separation of powers as in the United States. On the other hand, courts in India have also evolved following judicial activism to meet the welfare requirements specified in the basic laws of the nation.
"If the provisions of a statute are found to be violative of any Article of the Constitution which is the touchstone of the validity of all laws, Supreme Court and High Courts are competent to strike down the said provision," Khana J observed while hearing a case pertaining to Kishavananda Bharti vs the State of Kerala.
In the case of Scheduled Caste and Scheduled Tribes, the Constitution awards special favour and safeguards to the community, however, there has been no mention to specify the particular tribes and the power to list them has been granted to the President.
Article 366(24) read with Article 341
According to Article 366(24) and Article 341, the President may notify those castes, races or tribes. In Article 341(1) the President may also specify the castes, races or tribes, or parts of groups within the caste, races or tribes that may be deemed so under the Constitution in relation to that state.
Depending on the State and Union Territory, the Scheduled Castes vary. In the case of states, the President issues a notification post extensive consultations with the Governor of respective states. The sole purpose of the mentioned provision is to avoid differences with respect to a particular caste whether it must be specified as a scheduled caste or not. Also under Article 341, only those castes specified explicitly as Scheduled Castes are notified in the Presidential Order.
Under Article 341(2), the Parliament is free to include or exclude the list of Scheduled Castes mentioned in the notification by the President. This may refer to any caste, race or tribe or part of a group within a caste, race or tribe.
Now, as per Scheduled Castes Order 1950, no individual professing a religion other than Hindu or Sikh shall be considered a member of the Scheduled Caste. For instance, if a member of the Scheduled Caste changes religion then he will no longer be considered an SC.
In a case pertaining to ABSK Sangh (Rly) versus the Union of India, Article 341 clearly states a 'Scheduled Castes' needn't necessarily be considered a caste in the conventional sense according to Article 15(4) or 16(4). Hence, it is only after the President's mention that any caste, race or tribe or groups within castes, race or tribes become Scheduled Tribes under the Constitution.
The Supreme Court in the Triloki Nath vs State of Jammu & Kashmir case has made it clear that a state can ascertain a particular class of citizens whether they are backward or not with regard to acceptable criteria.
Backward classes
Apart from scheduled castes and tribes, protection has been provided by the Constitution to backward classes, as they have been sidelined for a longtime. Amongst all religious groups - Hindus, Muslims, Christians, etc we can find backward classes.
Also, the Government of India had appointed the Backward Classes Commission (known as the Mandal Commission) under Article 340 on January 1, 1979. The Commission submitted its report on 31st December 1980. The Commission was inter alia entrusted with the task of determining the criteria for defining the socially and educationally backward classes in the country. As per the Commission (besides Scheduled castes and Scheduled Tribes who amount to 22.56% of the total population), 52% of the total Indian population can be characterised as backwards and, therefore, 52% of all posts could be reserved for them. The Commission, however, refrained from making such a drastic recommendation in view of the Supreme Court's ruling that the total quantum of reservation under Article 16(4) should be below 50%.
Some Major Supreme Court Judgements On Reservations:
MR Balaji vs State of Mysore (1963, 5-judge bench)
The case pertains to the order by the erstwhile state of Mysore reserving 68% seats in Engineering and Medical colleges for educationally and socially backward classes and the SC and STs.
Rajendran vs Union of India (1967, 5-judge bench)
This was regarding the Centre’s decision over no reservation for the SC and STs in appointments made by promotions to Class I and II services in the railways as these required a higher degree of efficiency and responsibility.
Ajit Singh v. State of Punjab (1999, five-judge bench)
The reservation in promotions whether reserved candidates, who get promotion would be entitled to claim seniority over general candidates who get promoted at a later point in time. The court noted with the approval the law laid down in its previous judgments in MR Balaji vs State of Mysore (1963) and CA Rajendran vs Union of India (1967) that there is no duty on the government to provide reservations.
M Nagaraj v. Union of India (2006 – five-judge bench)
The Supreme court, in its judgment, stated that the government isn't bound to make a reservation for the SCs and STs regarding promotions. However, if it wishes to exercise discretion and make such provision, the state has to collect quantifiable data showing backwardness of a class and inadequacy of representation of that class in public employment.
Maratha Reservation and Courts Brief Analysis
17 March 2021 - No extraordinary circumstance to exceed 50% limit
A Constitution Bench of the Supreme Court heard the petitions challenging the Constitutionality of the Maharashtra State Reservation For Socially and Educationally Backward Classes (SEBC) Act which provides for a quota to Marathas in jobs and education.
8 March 2021 - Supreme Court issues notice to all states
Justice Ashok Bhushan led a five-judge bench sided with AG KK Venugopal's opinion that the view of the states is heard in the matter. The bench took the view that the issues which arise for its consideration are whether the Indra Sawhney judgments (Mandal Commission Case) requires a relook by a larger Bench, whether the 102nd Amendment affects the federal structure, depriving the states of their power in respect of the SEBCs.
Case Description
The Supreme Court had heard a case challenging the constitutional validity of Maharashtra’s Socially and Educationally Backward Classes Act, 2018, which grants reservations to the Maratha community.
The primary arguments in the case are that:
1. The Act is unconstitutional as it exceeds the 50% ceiling limit imposed on reservations by Indra Sawhney vs Union of India.
2. The Act provides reservation on the basis of the Justice Gaikwad Commission report, which lacks reliable, scientific and adequate data to justify either the backwardness of Marathas or the extra-ordinary condition of increasing reservations in Maharashtra from 52% to 68%.
3. The Act creates a special class of reservation for Marathas outside the OBC class and violates Articles 14, 16 and 19 of the Constitution by bestowing them with special benefits.
4. The Act encroaches on judicial power by directly overruling the High Court’s 2014 and 2016 orders.
4. The Act was passed without complying with procedural requirements mandated by the 102nd Constitution (Amendment) Act, 2018.
The Maharashtra State Government agreed that the number of suicides rose due to indebtedness and deteriorating incomes among Maratha families. Also, the 2014 interim order was no longer effective as the 2018 Act’s provisions had specifically repealed both the 2014 Ordinance and the 2014 Act.
On 27 June 2019, the Bombay High Court had upheld the constitutional validity of the Act.
1. State governments have the power to increase reservation beyond the ceiling limit of 50% in extraordinary circumstances justified by quantifiable data.
2. The Justice Gaikwad Commission report was based on scientific and quantifiable data which adequately justified both including Marathas as a socially and educationally backward class.
3. There has been no encroachment on judicial power as it did not directly overrule any court order. The only basis of the Court’s earlier order was altered having repealed the 2014 Ordinance and Act.
4. Reasonable classification under Article 14 of the Constitution provides reservation for the newly identified class of Marathas, who have been historically incorrectly denied affirmative action.
5. The 102nd Constitution (Amendment) Act, 2018 doesn't end the legislative competency of state legislatures to give effect to Articles 15(4) and 16(4) of the Constitution.
On 12 July 2019, the Supreme Court admitted an appeal to the Bombay High Court’s decision and issued notice to the Maharashtra state government, without staying the verdict of the Bombay High Court.
Reservation In Promotions and Judicial Approach
Reservation is not confined to an initial appointment: as mentioned in the Rangachari Case (AIR 1962 SC 36)
In this case, the validity of the circulars issued by the Railway administration providing for reservation in favour of Scheduled Castes / Scheduled Tribes in promotions (by selection) was questioned
State of Punjab v. Hiralal (AIR 1971 SC 1777)
The validity of an order made by the Government of Punjab for reservation in promotion was questioned. Though the High Court upheld the challenge, the Supreme Court reversed and upheld the validity of the Government order following the Rangachari case.
N M Thomas v State of Kerala ( AIR 1976 SC 490)
A 7-judge bench upheld the 5:2 majority which was amended by the State of Kerala in its service rules to grant an exemption to members of SC/STs from appearing in a departmental examination for promotion.
No reservation in promotions
In the Indira Sawhney vs Union of India (1992) Constitutional Amendments to overturn Indira Sawhney view on promotions. The view by public against the judgment and the Parliament, in 1995, through the Constitutional (77th Amendment) Act, bypassed the restriction set by the Indira Sawhney, by inserting Article 16(4)(A), thereby allowing the state to pass laws for reservation in promotion for SCs and STs.
Quantifiable data showing backwardness and inadequacy of representation needed for reservation in promotions: M Nagraj
Articles 16(4)(A) and 16(4)(B) which were challenged in the SC were termed violative of the basic structure. But a five-judge Constitutional bench of the Supreme Court hearing the M Nagaraj vs Union of India (2006) upheld these amendments.
Data showing backwardness not a precondition for reservation in promotions for SC/STs - SC clarifies in 2018
An SC led the five-judge bench in the 2018 decision regarding Jarnail Singh vs Lachhmi Narain Gupta (2018) held that there cannot be an insistence on the collection of quantifiable data of backwardness in relation to SCs and STs.
B K Pavitra decision - SC upholds Karnataka law giving reservation in promotions
Supreme Court in 2019 had upheld the Constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation Act 2018.
