20th March 2021 – Editorials/Opinions Analyses

Contents

1. SC: Mandal verdict should be referred to a larger Bench

SC: MANDAL VERDICT SHOULD BE REFERRED TO A LARGER BENCH

Context:

• The Supreme Court, while considering the validity of the reservation for the Maratha community in Maharashtra decided that it will hear all the States on the 50% limit on total reservation imposed by the court in the Indra Sawhney case (1992).
• This is because the 16% quota for Marathas would take the total reservation in Maharashtra beyond the limit of 50%.

Relevance:

GS-II: Social Justice (Issues Related to SCs & STs, Issues Relating to Development, Government interventions), GS-II: Polity and Governance (Important Judgments)

Mains Questions:

How important is reservation in striking a balance between social mobility and merit? Discuss the developments in India taken in this regard.

Dimensions of the Article:

1. Constitutional Provisions regarding reservation
2. Why is reservation needed in India?
3. Indra Sawhney Case
4. What are the issues in which the SC wants views of states?
5. M. Nagaraj vs. Union of India (2006)
6. Is there any other issue on the rights of States?
7. How will a judgment in this case impact reservation?
8. Way Forward

Constitutional Provisions regarding reservation

1. Article 15 (4) allows the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. This provision was extended to admission in educational institutions by 93rd Amendment Act, 2006 (except minority educational institutions).
2. Article 16 (4) allows State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
3. Article 16(4A), empowers state to make provisions for reservation in matters of promotion to SC/ST employees.
4. Article 46 states that 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.
5. Article 243D provides reservation of seats for SCs and STs in every Panchayat.
6. Article 243T provides reservation of seats for SCs and STs in every Municipality.
7. Article 330 states that seats shall be reserved in the Lok Sabha for the Scheduled Caste and Scheduled Tribes.
8. Article 332 of the Constitution of India provides for reservation of seats for the Scheduled Castes and the Scheduled Tribes in the Legislative Assemblies of the States.

Why is reservation needed in India?

1. To correct the historical injustice faced by backward castes in the country.
2. To provide a level playing field for backward section as they cannot compete with those who have had the access of resources and means for centuries.
3. To ensure adequate representation of backward classes in the services under the State. For advancement of backward classes.
4. To ensure equality as basis of meritocracy i.e., all people must be brought to the same level before judging them on the basis of merit.

Indra Sawhney Case

Regarding cap on reservation quota

• The Supreme Court in the Indra Sawhney vs Union of India had ruled that the total number of reserved seats/places/positions cannot exceed 50% of what is available, and that under the constitutional scheme of reservation, economic backwardness alone could not be a criterion.
• While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people.
• It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristic to them, need to be treated in a different way, some relaxation in this strict rule may become imperative.
• In doing so, extreme caution is to be exercised and a special case made out.

Regarding Promotions

• On June 17, 1995, Parliament, acting in its constituent capacity, adopted the seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservation to be made in promotion for SCs and STs.
• The validity of the 77th and 85th amendments to the Constitution and of the legislation enacted in pursuance of those amendments was challenged before the Supreme Court in the Nagaraj case.
• In its landmark 1992 decision in Indra Sawhney vs Union of India, the Supreme Court had held that reservations under Article 16(4) could only be provided at the time of entry into government service but not in matters of promotion.
• It added that the principle would operate only prospectively and not affect promotions already made and that reservation already provided in promotions shall continue in operation for a period of five years from the date of the judgment.
• It also ruled that the creamy layer can be and must be excluded.
• Upholding the validity of Article 16 (4A), the court then said that it is an enabling provision. “The State is not bound to make reservation for the SCs and STs in promotions.
• But, if it seeks to do so, it must collect quantifiable data on three facets — the backwardness of the class; the inadequacy of the representation of that class in public employment; and the general efficiency of service as mandated by Article 335 would not be affected”.
• The court ruled that the constitutional amendments do not abrogate the fundamentals of equality.

What are the issues in which the SC wants views of states?

• The five-member Constitution Bench of the SC wants to decide whether the judgment in Indra Sawhney vs Union of India, known as the Mandal verdict, needs to be referred to a larger Bench or “requires a relook in the light of subsequent Constitutional amendments, judgments and changed social dynamics of society, etc.”
• This is because the earlier judgment had declared that reservation cannot exceed 50% in total.
• Also, the court wants to consider whether the reservation for Marathas effected through a 2018 Act (the Socially Economically Backward Class Act), and amended in 2019, is covered by the “exceptional circumstances” mentioned in the Indra Sawhney judgment, which had said the 50% limit can be exceeded in “certain extraordinary situations” as a special case.
• This relaxation was meant for people inhabiting remote and far-flung areas who are away from the mainstream of national life and who may have “conditions peculiar to and characteristic to them”. Therefore, the bench wants to examine whether the State government had made out a case warranting such an exception for Marathas.
• In 2020, the Supreme Court stayed the implementation of the 2018 Maharashtra law granting reservation to Marathas in education and jobs.
• As Indra Sawhney was a decision by a nine-member Bench, a Bench of at least 11 judges will be needed to reconsider the question.

Why is the referral to a larger bench required?

• Over the years, several other States, including Tamil Nadu, have passed laws that allow reservation going beyond 60%.
• The court is also keen on hearing the views of the States on the 102nd Amendment of the Constitution, by which the National Commission for Backward Classes was given constitutional status.

M. Nagaraj vs. Union of India (2006)

• In the M. Nagaraj vs. Union of India case, a five-judge constitution bench of the Supreme Court validated parliament’s decision to extend reservations for SCs and STs to include promotions with three conditions:
• State has to provide proof for the backwardness of the class benefitting from the reservation.
• State has to collect quantifiable data showing inadequacy of representation of that class in public employment.
• State has to show how reservations in promotions would further administrative efficiency.

Is there any other issue on the rights of States?

• The 102nd Constitution Amendment introduced in 2018 grants constitutional status to the National Commission for Backward Classes and says the President would notify the lists of backward classes for all States in consultation with the Governors.
• This has raised apprehensions about whether the power of State governments to make inclusions and exclusions from the list of backward classes has been taken away.
• Therefore, the court has framed important questions: whether the 102nd Amendment deprives States of the power to make laws for socially and educationally backward classes and confer benefits on them, whether the newly introduced Article 342A of the Constitution abridges the State legislatures’ power to enact laws under Articles 15(4) and 16(4), which respectively deal with special provisions for other backward classes and reservation in employment, and whether all this affects the federal structure of the Constitution.
• Any judgment on the Maratha reservation issue would inevitably have to deal with three issues — the 50% ceiling on total reservation, the power of States to determine who its backward classes are and confer benefits on them, and the legislative competence of State legislatures regarding backward classes after the introduction of the 102nd Amendment.

How will a judgment in this case impact reservation?

• If the court, through a larger Bench, comes to the conclusion that the 50% ceiling is not a hard-and-fast rule and that it may be breached if a State’s backward class population is considered high, it would be a big boost for the affirmative action policies of various State governments.
• The decisions would also have relevance to the legal challenge to the introduction of the 10% quota for the economically weaker sections among those who do not fall under any reservation category.
  • By this move, the Centre has already exceeded the 50% limit, and at present, only 41% of seats or posts are meant for open competition in central employment and educational institutions.
• Further, the Bench is also likely to decide on the question of whether backward classes should also be classified and determined only by the Centre, just as the list of Scheduled Castes is made by the Union government.
  • As of now, only the President, or the Central government, can make modifications in the list of Scheduled Castes in respect of any State or Union Territory in the country. And this can be done only through a Parliamentary law.

Way Forward

• The reservation facility should be aimed at improving the socio-economic conditions of the marginalised in keeping with their standing in the caste-based census.
• While deciding the reservation issue, it is also important to take into account whether the states providing reservations to different communities are maintaining the federal structure of the government or destroying it.
• While giving reservation to the communities, the efficiency of the administration has to be looked upon too.

-Source: The Hindu