Ordinance to hike SC and ST reservation gets Gov nod

Ordinance to hike SC and ST reservation gets Gov nod

Subject :Polity

Context :Karnataka governor Thawarchand Gehlot gave his assent to the state government’s ordinance to increase the quota of the Scheduled Caste (SC) and the Scheduled Tribe (ST) communities in jobs and the education sector.

Concept :

• Passage of the ordinance increases the state’s quota in educational institutions and government jobs for Scheduled Castes from 15 per cent to 17 per cent, and for Scheduled Tribes from 3 per cent to 7 per cent.
• However, it is still unclear if the government is planning to adjust the increase in the quota under the existing 50 per cent reservation cap. The additional quota takes the total reservation in the state to 56 percent.

Reservation in Employment

• Under Article 16, there were 3 sub-clauses dealing with the job reservation. They are,
• Article 16(1): It provides for equality of opportunity for all citizens in matters relating to ’employment or appointment’ to any office under the State.
• Article 16(2):It provides that there cannot be any discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.
• Article 16(3):It provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state. This power vests solely in the Parliament, not state legislatures.
• Article 371:Some states have special protections under Article 371. Andhra Pradesh under Section 371(d) has powers to have “direct recruitment of local cadre” in specified areas.

Reservation in Education

• Article 15 (4) was introduced by the 1st Amendment Act, 1951. It confers the power on the state to make special provisions in favor of socially and educationally backward classes of citizens.
• This provision has a wider scope than the benefits that can be extended to the backward classes in the form of reservation of seats in higher education institutions, scholarship, hostel facilities, fee concession, etc.
• Article 15 (5) was introduced by the 93rd Amendment Act, 2005.
• It confers the power on the state to provide by law reserving seats in favour of backward classes of citizens in educational institutions including private educational institutions whether aided or unaided by the state by excluding minority educational institutions.
• This provision had been made use by central and state governments to extend reservation to backward classes including not more than 27% seat reserved in favour of OBC in educational institutions such as IIT, NIT, IIM but not in research oriented institution such as Indian Institute of Science, Bhabha Atomic Research Center etc.

Indra Sawhney & Others vs Union of India, 1992:

• The Supreme Court while upholding the 27% quota for backward classes, struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.
• SC in the same case also upheld the principle that the combined reservation beneficiaries should not exceed 50% of India’s population.
• The concept of ‘creamy layer’ also gained currency through this judgment and provision that reservation for backward classes should be confined to initial appointments only and not extend to promotions.

Breach of the Limit by the States:

• Notwithstanding the judgement passed by the Supreme Court, since Indira Sawhney judgment 1992, many states have passed laws breaching the limit of 50% such as Maharashtra, Telangana, Tamil Nadu, Haryana, Chhattisgarh, Rajasthan and Madhya Pradesh.
• Tamil Nadu Reservation Act, 1993 provides 69% reservation in State government jobs and educational institutions.
• In January 2000, the Governor of the erstwhile state of Andhra Pradesh declared 100% reservation to Scheduled Tribes (ST) candidates in posts of school teachers in Scheduled Areas.
• However, it was ruled as unconstitutional by the apex court.
• The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018, which provides 12% to 13% quota benefits for the Maratha community, takes the reservation percentage in the State across the 50% mark, was enacted

Other Constitutional Provisions Governing Reservation in India

• Part XVI deals with reservation of SC and ST in Central and State legislatures.
• Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST.
• The Constitution was amended by the Constitution (77th Amendment) Act, 1995 and a new clause (4A) was inserted in Article 16 to enable the government to provide reservation in promotion.
• Later, clause (4A) was modified by the Constitution (85th Amendment) Act, 2001 to provide consequential seniority to SC and ST candidates promoted by giving reservation.
• Constitutional 81st Amendment Act, 2000 inserted Article 16 (4 B) which enables the state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year.
• Article 330 and 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively.
• Article 243D provides reservation of seats for SCs and STs in every Panchayat.
• Article 233T provides reservation of seats for SCs and STs in every Municipality.
• Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration

Ordinance Making Power of Governor

• Article 213 states that the Governor of the state may issue ordinances when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.

Properties of the Ordinance

• An ordinance can be retrospective, which means that it can be enacted prior to its approval.
• An ordinance passed while legislative assembly is in session is deemed null and void.
• To stay a law, the Ordinance must be approved by legislature within six weeks of its reassembly. Its existence is terminated if the legislature does not act within six weeks of its reassembly.
• Acts, laws, and events that occurred as a result of the ordinance remain in effect until it expires.
• Ordinances can only be passed on subjects where state legislature has the authority to pass laws.
• Ordinances cannot be used to revoke the fundamental rights of the citizens guaranteed by the Indian Constitution.
• The ordinance would also be declared null and void if both houses( if present or legislative assembly alone) passed a resolution opposing it.