Reservations in Public Employment
Article 16(1) and classifications there under especially article 16(4) and Article 16(4A) which are in nature of facilitating provisions, vesting discretion on the government to consider providing reservation for socially and educationally backward sections of the society and to provide reservation in promotion to Scheduled Castes and Scheduled Tribes respectively.
RESERVATION IS NOT A FUNDAMENTAL RIGHT
There's no fundamental right to reservation or promotion under Article 16(4) or Article 16(4A).
- Mukesh Kumar and Another vs. the State of Uttarakhand and others 2020-SC held there is no fundamental right to reservation or promotion under article 16(4) or Article 16(4A) of the constitution rather they are enabling provisions for providing reservation if circumstances so warrant.
- However these pronouncements in no way understate the constitutional directives under article 46. ARTICLE 46-Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.—The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
MANDAL STORM AND INDRA SAWHNEY
- Reservation which was earlier only for SC/ST extended to OBCs on the recommendations of the Second Backward Class Commission headed by B.P.Mandal.
- Implemented by V.P.Singh government in 1990.
RECOMMENDATIONS
- Reservation of 27% in the public sector and government jobs for OBCs.
- The reservation quota if unfulfilled should be carried forward for 3 years.
- Age relaxation for OBCs same as that of SC/ST.
- A roster system should be prepared for the backward classes on the pattern of that for SC/ST.
- Reservation to be made in PSUs, banks, private sector undertakings receiving government grants, colleges and universities.
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Chief Justice M.H.Kania upheld the constitutionality of the 27% reservation but put a ceiling of 50% unless exceptional circumstances warrant the breach. The court dwelled on the interrelationship between article 16(1) and 16(4) and declared that article 16(4) is not an exception to article 16(1), but rather an illustration of classification implicit in article 16(1). |
- While article 16(1) is a fundamental right, Article 16(4) is an enabling provision; further the court directed the exclusion of creamy layer by way of horizontal division of every other backward class into creamy layer and non-creamy layer.
- INDRA SAWHNEY VS UNION OF INDIA 1992 the court examined the scope and extent of article 16(4), the court held that the creamy layer of OBC should be excluded from the list of beneficiaries of reservation, there should not be reservation in promotions and total reserved quota should not exceed 50%.
- Parliament enacted 77 constitutional amendment act which introduced article 16(4A) this confer power-on state to reserve seats in favour of SC and ST in promotions in public services if the communities are not adequately represented in public employment.
- NAGARAJ VS UNION OF INDIA 2006 held that any such reservation policy in to constitutionally valid shall satisfy the following three constitutional requirements.
- The SC and ST community should be socially and educationally backwards.
- SC and ST communities are not adequately represented in public employment.
- Such reservation policy shall not affect the overall efficiency of the administration.
JARNAIL SINGH VS LACHHMI NARAIN GUPTA CASE OF 2018, the court held that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the SC and ST. The court held that the creamy layer exclusion extends to SC/ST and hence the state cannot grant reservations in the promotion to SC/ST individuals who belong to the creamy layer of their community.
Constitution 103 rd amendment act 2019-10% reservation for Economically Weaker Section (EWS) other than Schedule Tribe, Schedule Caste, OBCs is under challenge before Supreme Court, the adjudication awaited going to be a crucial milestone as an understanding of backwardness is broadened to specifically include economic backwardness without social backwardness as traditional seen.
JAI SHRI LAXMANRAO PATIL VS CHIEF MINISTER 2021-SC not only affirmed Indra Sawhney's decision but also struck down section 4(1)(a) and section4(1)(b) of the act which provides 12% reservation for Marathas in educational institutions and 13% reservation in public employment respectively citing breach of ceiling.
