Samachar Manthan | Weekly CA Enforcer + Writing Assessment Program- Starts 17th December

Know more click here | Non Flagship students Join here | Flagship TS subscribers  Join here

Doctor by Training | AIIMSONIAN | Factually correct, Politically not so much | Opinionated? Yes!

Tags

Part 6 | I am the most backward! | Landmark Judgements that Transformed India



 

This is an issue that affects almost every citizen. Perhaps every Indian has had arguments on this which often end in acrimony. This is also an immensely political issue which crops up just before every major election. No doubt then, battles have been fought in courts, legislatures as well as on streets. At one point it took a very ugly and vicious turn and threatened to tear apart entire fabric of society.

Yes, we are talking about issue of reservation in jobs and educational institutions. We will limit our arguments to legal and constitutional angles and some politics (can’t help it) without going into philosophical and practical desirability or otherwise of such provisions.

Before we analyse Parliament and Supreme Court back and forth on the issue of reservation, let’s have a look at relevant constitutional provisions as they existed before amendments.

Article 15

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

  • (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
  • (3) Nothing in this article shall prevent the State from making any special provision for women and children

Article 16

Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State

Article 29

Protection of interests of minorities

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 46, a DPSP

  • 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

Article 335

  • Efficiency in administration
  • The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration.

Article 340

Appointment of a Commission to investigate the conditions of backward classes.

Note that I have highlighted the word “only” every time. “Only” here implies that state can not discriminate on religion, race, caste etc only but can discriminate on other grounds.

Now let’s come back to the courts

#1. Champakam dorairajan v/s state of madras

She challenged madras govt orders of caste quotas in medical colleges-

  1. Discrimination based only on caste not allowed under Article 15
  2. Discrimination in admission to public funded institutions not allowed (Art. 29)
  • Government claimed it was following instructions given under Art. 46
  • But court concluded that Fundamental Rights trump DPSP and quashed the unconstitutional order related to reservation

Predictably parliament passed 1st CAA (Constitutional amendment)

Along came art 15 (4)

Nothing in this Article or in Clause 2 of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Public sort of accepted the reservation but governments can take people for a ride, right! Mysore increased reservation to 68%.

#2. Balaji vs State of Mysore

Argument was that extravagant quota was a fraud on constitutional policy of reservation.

Supreme court concurred and balanced the competing interests of rewarding merit and uplifting weaker sections by prescribing 50% limit.

Court also held that whole caste was an important criteria it could not be the only criteria to ascertain backwardness since other religions did not have caste.

#3. In comes the Mandal commission

  • In pursuant of art 340, president set up 1st backward class commission known as Kaka Kalelkar commission in 1953
  • It identified more than 2000 castes as backward on the basis of education, employment, trade and occupation and most importantly position in traditional Hindu caste system
  • Obviously recommendations were consigned to respective dustbins and states were left free to frame their own criteria
  • Janata party had promised to constitute 2nd backward class commission and Morarji desai appointed a Commission under B.P. Mandal. It applied 11 relative indicators under 3 broad groupings, social, educational, and economic and came to conclusion that more than 3700 Castes were backward.

Following points are to be noted:

  1. 1st commission had identified about 2000 castes as backward
  2. Last caste census was conducted in 1931. Basically we were data which was 50 years old
  3. It inferred 52% of the population as OBC which nobody took seriously

To not breach 50% ceiling it recommended 27% reservation in jobs including govt aided pvt. firms as well as educational institutions.

By the time recommendations came, Janata govt had already fallen. Indira Gandhi consigned it to the same fate as earlier recommendations.

Now some politics

In 1990 when V.P. Singh’s corruption crusade was going nowhere, he played the master card of Mandal. Well if one govt order can get 52% of population voting for you, who would need support of kisan leaders like Charan Singh.

He released 2 office memorandums:

  1. 27% reservation for OBCs in govt. jobs
  2. 10% for economically weaker among general. It was to blunt the criticism from upper castes.

These announcements provoked unprecedented violence, protests and rioting in northern India. Rajiv Gandhi had shown the younger generation the dreams of 21st century but India seemed to be in drift. Corruption scandals had left them disillusioned. Now their whole career was at stake. They boycotted classes, torched vehicles etc. It took an ugly turn when in a tragic incident, Rajiv Goswami, student of Hindu college, DU immolated himself in public in front of live cameras. This sparked off a series of over 100 immolation. Whole nation was horrified. Unsure of whether to support or oppose reservation, Advani started his rath yatra. Shah Bano case had already polarized the communal atmosphere. Rest is a very tragic story which will be told some other day.


 

Rest continues in the next post of this series. Want to read more?

 

Questions, suggestions and comments


  1. Rehana Hassen

    SUPERB NOTES. THXS CD…

  2. Shanmuga Velan

    I am just curious to know the concept of creamy layer. As per the article 15 (4), the state can create special provisions for socially and educationally backward class but not for economically backward class. It exactly contradicts the concept of creamy layer. The person will be given with creamy layer status if he is from OBC and earning at least Rs. 6,00,000 per annum. Does it violate the section 15(4) ?

    1. Dr V

      Concept of creamy layer is introduced to protect economically weaker among socially and educationally weaker sections. Since all of them would necessarily be socially and educationally backwards, it does not violate article 15(4) but if economically weaker among upper castes are provided reservation, it would violate the said article.

      1. Shanmuga Velan

        This sounds logical now. In such case, the creamy layer concept also can be extended to SC/STs. Why is it not available till date? . Any reasons behind it like still SC/STs are inadequately represented ?

        1. Dr V

          Okay see, there is no such category as general category, it is unreserved. On the other hand there is quota reserved for SCs, STs and OBCs so if a SC, ST or OBC is competitive enough to cross unreserved category threshold, he will be considered unreserved first. Being in reserved category is privilege while unreserved category is . So if SC is rank 1 in UPSC, he will get seat from unreserved category only.
          PS.- Privilege and obligation words are just for understanding. There’s no normative judgement being passed here.

        2. Dr V

          yes, it can be if government and parliament so decides but obviously there are political compulsions. In fact, interim approach could be to set aside 50% of reservation with in the respective quota for non creamy SCs and STs.

          1. Shanmuga Velan

            Thank you sir.. The public service commissions are considering a person from OBC as the general category if he/she is competitive enough to score the cut-off set for general category. How do you see it? . It raises so many questions again on what basis reservation is planned 🙂

Highest Rated App. Over 3 lakh users. Click to Download!!!