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Part 7 | I am the most backward! | Landmark Judgements that Transformed India


If you haven’t read the story upto the Mandal judgement, read it here first, Part 6|Landmark judgement | I am the most backward 

Indira Sawhney case (Manadal Judgement)

He challenged the govt decision in supreme court on familiar grounds of equality and non-discrimination

9 judge bench sat in judgement and decided-

  1. 27% reservation valid but will not apply to creamy layer.
  2. 10% quota for Economically weaker section invalid.

Why?

  • No constitutional provision of reservation solely on economic grounds
  • Purpose of reservation is to uplift historically disadvantaged groups not to eradicate poverty
  • Reservation in promotion invalid
  • Constitute National Commission for Backward Classes (NCBC) for inclusion and exclusion in the list of OBCs.
  • Not to exceed 50%

In accordance with the judgement government constituted statutory national commission on backward classes. Note that its function was limited to inclusion and exclusion into the list of OBCs and recommendations for reservation. Its recommendations are ordinarily binding on the government except for compelling reasons.

Obviously government wouldn’t accept not giving reservation in promotion. On such issues, there’s always all party consensus.

77th Constitutional Amendment Act, 1995

To nullify ruling related to promotion, it introduced art 16 (4A) to provide promotion in favour of SC and ST if in the opinion of state they were not adequately represented.

 81st Constitutional Amendment Act

It introduced 16 (4B) which provided that unfilled vacancies of SC and ST will be carried forward and will not be counted to calculate 50% ceiling.

Well government was not satisfied with just promotions. Promotions had to be with consequential seniority.

85th Constitutional Amendment Act,2001

It accorded consequential seniority to the SC and ST candidates promoted under 16(4A). If you want to know the ultimate fraud, it was to come into effect retrospectively from 1995. You could be demoted.


M.Nagraj vs UOI case

Challenged 77th CAA and 85th CAA

Court held them constitutional but contended these are only enabling provison and any law must satisfy 3 conditions

  1. Proof of Social and Educational Backwardness
  2. Proof of inadequate representation
  3. It will not affect efficiency in administration (art 335)

Court’s argument for holding them constitutional

It is the duty of the State not only to protect human dignity but facilitate it by taking positive steps in that direction.

UP govt promoted it’s employees which was challenged

Rajesh Kumar v/s UP Power Corporation

Court held such promotions invalid for no quantifiable data related to inadequate representation was presented before the court.

117th CAB

  • SC AND ST will be deemed socially and educationally backwards.
  • Art 16 4A and 335 will not apply for promotion of SC and ST

Meanwhile as with Indian govt, courts were also trapped in socialist utopia in which state would provide for everything, at least education and health and that for profit educational institutions were bad bad thing. For the record, education sector can not be run for profit even today.

Unni Krishnan Vs. State of Andhra Pradesh

Origin of fundamental right to education

  • Court held that every child/citizen has a right to free education up to the age of 14 years.
  • But very significantly it was also observed that right to establish educational institutions can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g).

I can only say wowwwww!

T.M.A.Pai Foundation v. State of Karnataka

Earlier ruling was overruled.

  1. The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Article 19(1)(g) and 26, and to minorities specifically under Article 30.
  2. All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right will be subject to the provisions of Articles 19(6) and 26(a).

Very significant aspect of this judgement was that majority community i.e. Hindus were put on equal footing with minority community in matter of administration of educational institutions. Obviously secularists of this country wouldn’t like it and they would do something to take away this equality. (Conspiracy theory)

P.A.Inamdar v. State of Maharashtra

Supreme court held that reservations cannot be enforced on Private Unaided educational institutions.

93rd CAA in 2005

It was passed to nullify Inamdar and once again put minorities on pedestal w.r.t. administration of educational institutions. This had to be done by secularists. (conspiracy theory)

Introduced Art 15(5)

State can by law (enabling provision) provide for reservation of seats for backward classes in educational institution including pvt unaided institutions but excluding minority educational institutions..

Note here that it applies to majority unaided institutions but not even to minority aided institutions.

  • Parliament then passed central educational institution act providing reservation for OBCs in IITs, IIMs. AIIMS etc.
  • RTE Act provided for reservation of 25% of seats in private unaided educational institutions aided or unaided but excluding minority institutions,

Pramati Educational and Cultural Society

93rd CAA was challenged on grounds of freedom of profession.

Supreme court found it consistent with reasonable restriction clause.

Article 15 (5) is consistent with the socialistic goals set out in the Preamble and the directive principles and to ensure the march and progress of the weaker sections resulting in progress to socialistic democratic State establishing the egalitarian ethos/egalitarian equality, which is the mandate of the Constitution.

It also contended that the minority aided educational institutions could not be compelled to provide free and compulsory education to children belonging to weaker sections from minorities themselves.

It’s applicable to elementary education now. Govt can extend it any time to higher educational institutions.

A few more points-

Issue of Jat reservation (Again raised during bloody agitation)

You all are aware that it was struck down. Reasons were

  1. Government acted against recommendations of NCBC without giving any compelling reasons.
  2. Adequate data was not collected to show backwardness while on the face of it community is very politically organized.
  3. Data was a decade old.

These supreme court observations will help you in mains, essay and interview on issues related to caste and reservation.

  1. “caste” and “historical injustice” cannot blind a state in according backward status to a community and that new emerging groups such as transgenders must be identified for quota benefits.
  2. social groups which would be most deserving must necessarily be a matter of continuous evolution”.
  3. the principle of affirmative action under the Constitution obligated the state “to reach out to the most deserving” class.
  4. social backwardness had to be the prime consideration for granting OBC status and such recognition could not be associated with caste alone.
  5. “Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political.
  6. New practices, methods and yardsticks have to be continuously evolved, moving away from caste-centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action,”
  7. Wrong inclusion in the past can not be the ground for inclusion of similarly situated groups at present

Issues related to sub quota for Muslims within OBCs

Rangnath Mishra Commission and Sachar Committee suggested providing a separate 10 % quota for Muslims within OBC. This quota within quota is known as Horizontal reservation.

  • Andhra Pradesh govt provided for 4% quota for Muslims.
  • Quota was quashed by High court and high court judgement stayed by supreme court. Matter is till pending in the supreme court.
  • Whatever BJP might say about reservation on religious grounds, it is constitutionally valid provided subgroups are classified in a reasonable manner and data relating to backwardness and inadequate representation is suitably collected and presented to the court.
  • In the similar case Bombay high court while quashing separate quota for Marathas, upheld separate quota for Muslims in educational institutions.

Issue of reservation in private sector

  • With liberalization of economy, public sector jobs have been coming down and private sector has become major employer. Data suggests representation of weaker sections is very poor especially in top echelons of private sector corporations and next battle for reservation will predictably shift to private sector.
  • As I write this article, NCBC has recommended to the government to provide for 27% quota in private sector jobs for OBCs for government provided so many benefits to private corporations.

Issue of Reservation and Caste consciousness

Supreme court judgement in Indira Sawhney case was roundly criticized for bringing the issue of caste to the fore in Indian politics and promoting caste consciousness. Court virtually equated caste with class but first step in resolving any social evil is recognition that evil exists. Supreme court observed that caste had become the cancer cell of Hindu society and biggest curse for India.

Reservation, data vacuum and SECC

Present OBC reservation is based on census conducted in 1931. Public policy of such magnitude can not be allowed to operate in data vacuum. That’s why there is urgent need to reveal findings of SECC. Of course findings should be credible, not like other data which does not match with that of NSSO.

Consequential Seniority explained (not imp for exams)

Consider two candidates A (General) and B (Reserved) who are in the same class of service Grade 1.  Say, A is 5 years senior to B and both are awaiting promotion to the next level ,Grade 2.  B now gets promoted over A. Eventually say after 3 years A also gets the promotion to the same grade as B. What happens now ? Under the Consequential Seniority, A will not regain his seniority of 5 years over B.

Now A and B are in Grade 2 – B has been there for 3 years and A has recently been promoted.A is now junior to B. The fact that he was 5 years senior to B before the promotion of B is deemed immaterial. For further promotion to Grade 3 , A will be considered 3 years junior to B. In other words, A has lost 8 years inter se B.


 

If you enjoyed reading this post, read up everything that we have written on this aspect of Indian Polity to help you understand things in details.

Questions, suggestions and comments


  1. Kunal Aggarwal

    What is consequential seniority?

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