reservation in government jobs

The jurisprudence of reservation depends on the coexistence of equality of opportunity constitutionally guaranteed under Article 16(1) of the Constitution of India and different clauses of the same article, especially Article 16(4) and Article 16(4A), which in the nature of facilitating provisions vesting a discretion on the Government to provide reservation for socially and educationally backward sections of the society and to consider providing reservation in promotion to Scheduled Castes and Scheduled Tribes Huh.

Reservation is not a fundamental right

It is an established law, repeatedly reiterated by the Supreme Court, that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4A) of the Constitution, rather they enable provisions to provide for reservation. are. , if circumstances so warrant ( Mukesh Kumar & Ors vs State of Uttarakhand & Ors. 2020,

However, these declarations do not in any way dilute the constitutional directive under Article 46, which states that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular the Scheduled Castes and the Scheduled Tribes. Will give In fact, the sensitivity of the welfare state towards weaker sections over the decades resulted in the gradual expansion of the reservation umbrella in the form of an increased classification under Article 16, a set of actions that led to a wave of litigation that resulted in an always-positive increase in public employment. The development of the jurisprudence of action.

Mandal Toofan and Indra Sawhney

Reservation in employment which was otherwise confined to Scheduled Castes and Scheduled Tribes was extended to Other Backward Classes as well, based on the recommendations of the Second Backward Classes Commission constituted under the chairmanship of BP Mandal.

The Mandal Commission (1980) recommendation for providing 27% reservation to Other Backward Classes in Central Services and Public Sector Undertakings, in addition to the existing 22.5% reservation for Scheduled Castes and Scheduled Tribes, sought to be implemented by the VP Singh Government Went. in 1990 and the same was attacked in the Supreme Court which resulted in the landmark Indra Sawhney Judgment (1992). In the judgment, a nine-judge bench headed by Chief Justice MH Kania upheld the constitutionality of the 27% reservation, but kept the limit of 50% unless exceptional circumstances require a violation, so that under Article 14 constitutionally guaranteed equality. Safe.

The Court took note of the interrelationship between Articles 16(1) and 16(4) and declared that Article 16(4) is not an exception to Article 16(1), but an example of the classification contained 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 the creamy layer into creamy layer and non-creamy layer through horizontal division of every other backward class.

The Constitution (Seventyth Amendment) Act, 1995

In the Indira Sawhney case, the Supreme Court held that Article 16(4) of the Constitution of India does not authorize reservation in the matter of promotion. However, the decision was not to affect the promotion already made and therefore only probable in operation, the ruling was passed.

By the Constitution (Seventyth Amendment) Act, 1995, which, Article 16(4-A), was inserted to provide that “nothing in this article shall make any provision for reservation in matters of promotion to any class to the State or classes of posts in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State”.

Later, two more amendments were brought, one to ensure consequential seniority and the other to carry forward the incomplete vacancies of one year, first by addition of Article 16(4A) and second by adding Article 16(4)B).

Decision of the Constitution Bench in M. Nagaraj (2006)

A five-judge bench of the Supreme Court declared the 1995 amendment not assertive to the basic structure of the Constitution, but stipulated certain conditions, including “quantitative data showing the backwardness of the class and the inadequacy of that class’s representation in public employment.” The collection was included. The bench said that the creamy layer of scheduled castes and tribes has to be kept out of reservation.

Jarnail Singh Vs Lachmi Narayan Gupta (2018)

In the above case, a Constitution Bench of the Supreme Court was summoned to examine the wisdom of the 2006 judgment in the light of the constitutionally recognized socio-economic backwardness of Scheduled Castes and Scheduled Tribes, which requires further confirmation. Can’t be. It was also argued that the need to identify creamy lawyer among Scheduled Castes and Scheduled Tribes was not in line with the decision of Indra Sawhney. The Constitution Bench invalidated the requirement of collecting quantitative data in respect of Scheduled Castes and Scheduled Tribes but upheld the principle of applicability of creamy counsel in respect of Scheduled Castes and Scheduled Tribes. Jarnail Singh’s judgment authored by Justice Rohinton Nariman marks a turning point in the jurisprudence of reservation.

The Constitution (103rd Amendment) Act, 2019

10% reservation for Economically Weaker Sections (EWS), other Scheduled Castes, Scheduled Tribes and Backward Classes for admission to government jobs and educational institutions is currently under challenge before the Supreme Court, which referred it to a Constitution Bench. Have given. The awaited adjudication in this regard may also prove to be an important milestone in the jurisprudence of reservation as the traditional understanding of backwardness is widely seen to include economic backwardness without specifically social backwardness.

Dr. Jayshree Laxmanrao Patil Vs Chief Minister (2021)

Despite Indra Sawhney’s decision, there have been attempts on the part of several states to violate the rule by expanding reservation coverage and under the Maharashtra Socially and Educationally Backward Classes Act 2018, (Maratha Reservation Act) challenged before the Supreme Court. came. Which referred it to a five-judge bench and one of the questions was whether the 1992 judgment needed to be reconsidered.

Interestingly, the Supreme Court not only upheld Indra Sawhney’s decision, but also struck down Section 4(1)(a) and Section 4(1)(b) of the Act, which mandated the use of Marathas in educational institutions. Reservation was provided for 12% and 13% in educational institutions. Reservation in public employment respectively citing violation of ceiling. “The 2018 Act, amended in 2019 to provide reservation for the Maratha community, does not create any extraordinary circumstance for exceeding the ceiling of 50% reservation,” the apex court declared. The decision is likely to rein in the tendency of some state governments to openly flout the limits prescribed on electoral grounds rather than under any exceptional circumstances envisaged by the Constitution Bench. It is worth noting that several states like Maharashtra, Karnataka and Andhra Pradesh had made submissions before the Supreme Court against any upper limit on reservation.

Abhilash MR is an advocate practicing in the Supreme Court of India.