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RESERVATION IN THE PUBLIC EMPLOYMENT: AN OVERVIEW

INTRODUCTION

Reservation was introduced with a view to uplift the deprived sections of society. The main objective of the reservation is to ensure that equal and fair opportunities are provided to all the people. The provisions of reservation in respect of public employment as well as promotion have been clearly specified in Article 16[1] and there under clauses particularly Article 16(4) and 16(4A)[2]. The central aim of the constitution is “to secure to all citizens equality of status and opportunity and to promote among them all fraternity assuring the dignity of the individual and the nation”. Initially, the reservation policy was limited only to ST, SC. However, with the passage of time, reservation has also been extended to Other Backward Castes (OBC), and Economically Weaker Sections (EWS). Reservations are pertinent for the communities that are stepping into the educational and employment mainstreams.[3] Back in the days, majority of the people were deprived of education by mere reason of caste and race thereby resulting in unemployment due to illiteracy. The primary concern of the government in respect of reservation is therefore always to safeguard those people from injustice owing to caste-based discrimination. Thus, the key element to the reservation policy is to promote equality by way of providing opportunities and reassurance to the underprivileged section of society with respect to employment, education and politics. 

EFFECTS OF MANDAL COMMISSION

The Mandal Commission was set up in 1979 by the Morarji Desai Government under the chairmanship of B.P Mandal. The main aim of this commission was to track down socially and economically backward classes and to provide reservation as a means to voice against the inequality and caste-based discrimination and raise awareness of the same. The Kala Kalelkar Commission also known as First Backward Commission set up in 1953 was the first to give rise to the socially and educationally backward classes by virtue of Article 340[4], however, the commission turned out to be unsuccessful because it had failed to achieve the most principal objectives.[5]Thus the need of Second Backward Commission, also known as Mandal Commission arose. Upon the recommendations made by the Mandal Commission, reservation has been further extended to OBC which was earlier granted only to ST, SC categories. The report of commission in which it was mentioned that about 52% of population belongs to OBC of total population of India.[6] As the government was highly concerned about the equality, a decade later, implemented the recommendation by way of providing 27% reservation for OBC alongside the existing 22.5% reservation to both ST and SC there by taking it below 50% in total so that the right to equality enshrined under the part III of the constitution of India would remain secured.[7]However, there are certain states facing legal consequences for exceeding the reservation capped at 50%. On the other hand, the Rajasthan Government took a step to implement reservation that is over 50%limit including 14% for forward castes in terms of services and education.[8]In the Indira Sawhney case,[9] which is popularly known as Indira Sawhney Judgement or Mandal case, a bench comprising of nine judges presided by Chief Justice M H Kania, upheld the 27% reservation provided for the OBC and asserted that reservation for this category cannot be merely on the basis of caste. Further, the court directed for dividing the backward classes into creamy and non-creamy layer and for keeping the creamy layer out of the reservation.

IS RESERVATION A FUNDAMENTAL RIGHT?

It is a well-established law that right to reservation is not a fundamental right hence, an individual cannot approach the Supreme Court under Article 32[10] in violation of the same. It has been made clear that reservation is not a constitutional right in a few prominent cases. In the recent case of Mukesh Kumar and Another v. State of Uttarakhand& Ors,[11]the Supreme Court ruled that states are not duty bound to provide reservation or promotion in pursuance of Article 16(4) or Article 16(4A) of the constitution as right to claim reservation is not a fundamental right, rather they are enabling provisions which are laid down to provide reservation when circumstances so warrant. A bench comprising of five judges in the case of C.A. Rajendran v. Union of India,[12] held that it is not obligatory for the Government to provide reservation for the weaker sections of society in view of the fact that there is no constitutional duty on the part of Government with regard to reservation or promotion. The similar judgement has also been passed in the case of Ajit Singh v. State of Punjab,[13]that Article 16(4) and Article 16(4A) are brought in the nature of enabling provisions conferred on the state to consider providing reservation therefore, right to reservation is neither a fundamental right nor a constitutional duty.

SOME IMPORTANT CASE LAWS

M.R Balaji and Ors v. State of Mysore[14]

This case was brought before the Hon’ble Supreme Court with regard to the amendment of Article 15(4)[15] and to clear the question as to the limitation of the reservation. In the judgement, a bench comprising of ten judges declared that the reservation shall not exceed 50%. The bench has also held that reservation cannot be based on the sole criteria of caste, rather it shall consider other factors aside from caste.

Nagaraj v. Union of India[16]

This is an important case that deals with a significant matter of providing reservation in the promotion.  A constitutional bench directed the government to collectquantifiable data showing backwardness of the class and inadequacy of representation of that class in the public employment.”The court has further held that those who are socially, educationally and economically well off among scheduled tribeand scheduled castefall within the ambit of creamy layer and shall be excluded from reservation.

Jarnail Singh v. Lacchmi Narain Gupta[17]

In this case, a petition was filed in order to review the judgment passed in the M. Nagaraj case in respect of the reservation in promotion. Few contentions were raised before the court as a result, examination of the given verdict deemed to be necessary. After the review, the court struck down the condition to collect the quantifiable data in respect of public employment however, upheld the application of creamy layer in regard to the ST, SC.

Dr Jaishri Laxmanrao Patil v. Chief Minister& Ors[18]

This case is pertaining to the reservation provided to the Maratha Community which exceeded the limit of 50%.The court held that the Maratha Quota is unconstitutional as it has violated the Article 14 &16[19] of the constitution of India. The court invalidated the provisions of reservation that was provided to the Maratha Community as a result of exceeding the 50% bar which was fixed in the Indira Sawhney verdict in the year 1992.

CONCLUSION

The evolution of reservation in India dates back to pre-Independence period. Although there have been problems and debates over the reservation, this policy has played a major role in uplifting the underprivileged section of society. Having considered the kind of discrimination and difficulties faced by the similar communities in the past, reservation in order to maintain and ensure equality in the nation was appropriate so that the weaker section of people would not be pushed backward in the name of discrimination and inequality. With the arrival of Mandal commission, reservation further got extended to the OBC category which has moulded the backward classes. Mostly, reservation was provided to the underrepresented people on the basis of caste criteria. However, there are various other aspects which the concerned states are required to examine such as standard of life, lack of basic needs, poverty etc in order to identify the needy people. Since there exist quite a few problems in relation to the reservation, the government should consider solving the frequent issues and take appropriate steps accordingly.

Author(s) Name: Priya A (SDM Law College, Mangalore)

 References:

[1] Constitution of India, 1950, art.16

[2] Constitution of India, 1950, art.16(4) and art.16(4A)

[3]Cynthia Stephen, ‘The History of Reservations in India from the 1800s to the 1950s’ (2006) 10 (2) Integral Liberation <https://www.academia.edu/7827406/THE_HISTORY_OF_RESERVATIONS_IN_INDIA_FROM_THE_1800s_TO_THE_1950s> accessed 4 June 2022

[4] Constitution of India, 1950, art.340

[5]Akshay Ratan, ‘Mandal Commission Persistence of Caste Identities and Reservation in India’ (Research Gate, 23  April 2014) <https://www.researchgate.net/publication/262724077_MANDAL_COMMISSION_-PERSISTENCE_OF_CASTE_IDENTITIES_and_RESERVATIONS_IN_INDIA> accessed 4 June 2022

[6]Dr. Ashish Singal, Ekramuddin, & Jamsheed Ansari, ‘A Study on the Issues of Reservation Policies in India’ (2019) 6 (4) IRJECT, 5 <https://www.irjet.net/archives/V6/i4/IRJET-V6I4894.pdf> accessed 4 June 2022

[7]Abhilash M.R. ‘Reservation in Public Employment’(The Hindu, 30 May 2022) <https://www.thehindu.com/opinion/op-ed/reservation-in-public-employment/article65473459.ece> accessed 4 June 2022

[8]S. Yesu Suresh Raj & P.Gokulraj, ‘An Analysis of Reservations System in India’ (2015) 2 (10) IJR, 5

<https://www.academia.edu/18311102/An_Analysis_of_Reservation_System_in_India> accessed 4 June 2022

[9]Indira Sawhney v Union of India and Others (1992), AIR 477

[10] Constitution of India, 1950, art.32

[11]Mukesh Kumar and Another v State of Uttarakhand and Others (2020) Appeal (Civil) No. 1226/2020

[12]C.A. Rajendran v Union of India & Others (1968), AIR 507

[13]Ajit Singh v State of Punjab (1967), AIR 856

[14]M.R Balaji & Others v State of Mysore (1963), AIR 649

[15] Constitution of India, 1950, art.15(4)

[16]M Nagaraj & Others v Union of India & Others (2006) 8 SCC 212

[17]Jarnail Singh v Lacchmi Narain Gupta (2022) Appeal (Civil) No. 629/2022

[18]Jaishri  Laxmanrao Patil v The Chief Minister & Others (2020) Appeal (Civil) No. 3123/2020

[19] Constitution of India, 1950, art.14 and art.16