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- GS 2 || Polity || Constitutional Framework || Fundamental Rights
Why in the news?
- ‘For how many generations would reservations in jobs and education continue!’; The Supreme Court has recently raised red flags over the ‘reservation’ issue during the Maratha quota case hearing.
- It also raised concerns over “resultant inequality” in case the overall 50 per cent limit was to be removed.
Affirmative Action in India: Historical and current perspectives
- India’s affirmative action (AA) programme is primarily caste-based. Such a policy has been in existence in the pre-constitutional era as well.
- The Indian Constitution provides for AA in form of reservation for people from lower castes.
- It was an earnest attempt by the framers of the Constitution to bring in socio-economic equality in Indian society, particularly, the reservation in matters of Public Employment as provided in Article 16 of the Constitution.
- The first ever reservation was granted by the former princely state of Mysore on the recommendations of the committee set up in the year 1918.
- The demand for some kind of affirmative action had also been taken up before by people like Jyotibha Phule and others, and the British did give reservation to some of these classes but their motives were always suspect.
- Later, after independence the Constitution made ample provisions for the affirmative actions by the State. However, over a period of time it has generated considerable controversy.
- In the polarised debate around AA, it is either demonised as the root of all evil or valorised as the panacea for eliminating discrimination.
- While the debates around AA are emotionally charged, it is important to take stock of AA dispassionately through an evidence-based approach.
Constitutional Basis of ‘Reservation’ in India:
The constitutional position of providing affirmative action or ‘Reservation’ stems from the following Articles of the Constitution of India.
- Article 15 (4) – This article enjoins upon 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.
- Article 16 (4) – This article allows the 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.
- Article 16(4A): It confers powers to the State to make any provision for reservation[in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour 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.
- Article 16(4B) It allows the State to consider any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.
- Article 335 – It says that the claims of the members of the SCs and the STs shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
Reasons for castes-based Affirmative Action:
- Systematic inter-caste disparities: Data from a variety of sources on material standards of living, poverty rates, health status, educational attainment and occupational outcomes indicate that the disparities between SC-ST on the one hand and non-OBC Others are persistent and systematic.
- Social Discrimination: There is sufficient evidence that amply demonstrates the various aspects of stigmatisation, exclusion and rejection that Dalits continue to face in contemporary India. In rural India, despite the breakdown of the traditional subsistence economy, caste continues to exert its strong presence in many different dimensions.
- Economic Discrimination: There is plenty of evidence which documents the substantial gaps between SCs and Others in access to education, quality of education, access to resources that could enhance learning, and also of active discrimination inside schools by teachers.
- Compensation for historical wrongs: The social policy should compensate for the historical wrongs of a system that generated systematic disparity between caste groups and actively kept untouchables at the very bottom of the social and economic order.
Criticism of Affirmative Actions Programme in India:
The policy of reservation has been criticised on following grounds.
- First, there is considerable debate over the assessment of caste disparities, the prima facie reason for the existence of AA – whether these are significant at all; if yes, to what extent and in which sphere; and whether they have been narrowing over time.
- Second, there is a larger debate about whether caste is the valid indicator of backwardness or should AA be defined in terms of class/income or other social markers, such as religion.
- Third, there is the overarching debate about whether AA is desirable at all, in any form, regardless of which social identity is used as its anchor.
Preceding developments to the landmark Indra Sawhney v.s. Union Of India & Ors:
- In the year 1979, the then Prime Minister Shri Morarji Desai appointed the second Backward Classes Commission under Article 340 of the Constitution.
- The article 340 of the Indian Constitution lays down conditions for the appointment of a Commission to investigate the conditions of backward classes.
- The Commission was headed by B.P. Mandal and its mandate was to investigate the status of socially and educationally backward classes in India.
- The Commission presented its report in 1980 in which it recommended a reservation of 27 percent in government jobs for these castes.
- The recommendations of the report could not be implemented immediately as the then government of Janta Party collapsed.
- There wasn’t much progress in this respect for several years until Janata Dal regained power in 1989 and decided to implement the recommendations of the report and reserved 27 percent of the seats for socially backward classes.
- This was followed by reservation and anti-reservation protests in large parts of the country some of which led to riots.
- Rajiv Goswami, a student at the Delhi University attempted self-immolation on 19 September 1990 to protest against Prime Minister V.P. Singh’s implementation of the Mandal Commission recommendations for job reservations for backward castes in India.
- When the government action was challenged before the Supreme Court in a writ petition on name of Indra Sawhney v Union Of India .
- Following this development, the then Prime Minister P V Narasimha Rao brought in another order which increased the reservation limit to 37 percent while including economically, socially and educationally backward classes as well.
- Seeing the complexity, the five-judge bench referred the matter to a nine-judge bench.
Issues to be considered in Indra Sawhney v Union Of India:
Significant Issues to be considered by the Supreme Court in this writ petition were:
- Casts versus Class: The court had to consider whether caste on its own constitutes a different class and whether economic criteria could by itself be the determinant of a class.
- Legal position of Article 16(4): The court also had to contemplate whether Article 16(4) was an exception to Article 16(1) and is exhaustive in itself of the rights of reservation. Does Article 16(4) allow classification of ‘Backward Classes’ into Backward Classes and Most Backward Classes or permit classification among them based on economic or other considerations.
Main Tenets of the Indira Sawhney Judgement:
- Economic factors alone would not be co considered as basis of providing reservation: The Court held that Backward classes under Article 16(4) cannot be identified on the basis of economic criteria but the caste system also needs to be considered.
- Exceptions provided in Article 15(4) and 16(4) are not the same: Article 16(4) is not an exception to clause 1 but an instance of classification as envisaged by clause 1. Backward classes in article 16(4) were different from the socially and educationally backward mentioned in Article 15(4). However, Article 16(4) does allow the classification of backward classes into backward and more backward
- Introduction of the concept of the ‘Creamy Layer’: The concept of a creamy layer was laid down and it was directed that such a creamy layer be excluded while identifying backward classes.
- Cap on reservation: Reservation shall not exceed 50 percent, moreover, reservation in promotions shall not be allowed.
- Jurisdiction of Supreme Court on the disputes related to criteria: Any new disputes regarding criteria were to be raised in the Supreme Court only.
Post-Indira Sawhney developments:
- Following the judgement, the Parliament enacted several constitutional amendment Acts. Among them, the most prominent was the 77th Constitutional Amendment Act. The 77th CA added a clause (4A) to Article 16.
- It therefore conferred powers to the State to reserve seats in favour of SC and ST in promotions in Public Services if communities are not adequately represented in public employment. The Supreme Court upheld the validity of Article 16(4A) in M. Nagaraj Vs Union of India 2006
Should the Indira Sawhney Judgement be reviewed at this point of time?
- The most discussed element of the Indira Sawhney case was perhaps the capping 50% on the reservation. While giving direction on capping reservation by 50%, the court observed:
- “Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50 percent of the appointments or posts, barring certain extraordinary situations.”
- However, in subsequent judgement, the Bombay High court has observed that the 50-percent cap on total reservations imposed by the Supreme Court could be exceeded in exceptional circumstances.
- Following this, several states have enacted legislations surpassing the reservation cap of 50%. These include Tamil Nadu (69 percent), Haryana (67 percent) and Telangana (62 percent).
The reasons which requires the Supreme Court to review the Indira Sawhney Judgement:
- Lack of quantifiable data on OBCs: Though the caste based census was introduced in 1931 for the first time, the Indian governments after independence have been avoiding caste based census so far. Thus, the SC had directed the government to provide 27% of reservation without actually knowing the share of OBCs in total population.
- Definition of OBCs still not clear: The definition of OBCs is still not clear. The government needs to come up with an agreeable definition of OBCs. Regarding this, the SC has sought States’ view on amended Article 342A that deals with power of the President to notify a particular caste as Socially and Educationally Backward Class and power of Parliament to change the list.
- The concept of creamy and non-creamy layers: Furthermore, the concept of creamy and non-creamy layer needs exhaustive caste based census data to determine the actual creamy and non-creamy layer caste groups.
The Census of India will conduct a caste census for the first time after independence as per decision of the Government of India. At this juncture therefore it is not desirable to enhance the quota limit till a caste census is conducted and the strength of the OBC population is known for all time to come. Also, once the updated caste census data is available, the Supreme Court can review the Indira Sawhney Judgement and give a directive which is authentically reflective of socio-economic realities of India.
Model Mains Question:
- Discuss the constitutional framework of providing Affirmative Actions in India. What is the significance of Indra Sawhney v Union Of India in this regard?