Reservation within Constitutional bounds

May 10, 2024
Posted by: OptimizeIAS Team
Category: DPN Topics

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Reservation within Constitutional bounds

Subject: Polity

Sec: Constitution

Context:

A political slugfest has emerged over the reservation issues.

Constitutional Basis for Reservation:

The Constitution of India provides for reservation in various forms, including:

Article	Reservation
Article 15(4)	Nothing in this article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.
Article 16(4)	Nothing in this article shall prevent the State from making 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)	Provisions for reservation in the promotion of posts in services under the state for members of the SCs and STs
Article 16(4B)	It enables the state to fill unfilled vacancies reserved for SCs/STs in the following year
Article 39A	The state has to ensure justice and free legal aid to weaker sections of society
Article 243D	Reservation for SCs/STs and Women in Panchayati Raj Institutions
Article 243T	Reservation for SCs/STs and Women in Urban Local Bodies
Article 330 and Article 332	Reservation of seats for the SCs and the STs in the Parliament and in the State Legislative Assemblies respectively

Different types of Reservations in India:

Type	Description
Verticle Reservation	It refers to the reservation of seats in educational institutions and jobs in government services for Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBCs). This reservation is based on the proportion of the population of these groups in the country or a specific state.
Horizontal Reservation	It refers to the reservation of seats for specific categories of people within the reserved categories. For example, within the SC category reservation, there can be reservations for differently-abled people.
Caste-based Reservation	Caste-based reservation is a system that provides opportunities and access to education and employment to people belonging to historically marginalized castes in India, such as Scheduled Castes (SC) and Scheduled Tribes (ST).
Gender-based reservation	Gender-based reservation is based on the principle of gender equality. In India, the Constitution has provided one-third reservation to women in local bodies under Articles 243D and 243T.
Income-based reservation	It is a system that provides opportunities and access to education and employment to poor sections of society. For example, reservation to the economically weaker sections(EWS) of society.
Reservation for differently-abled	It is based on the principle of inclusivity, which aims to create an equal and accessible society for people with disabilities. For example, 4% reservation is provided to disabled persons in government jobs.

Key judgements:

Indra Sawhney Case (1992): The Supreme Court upheld 27% reservation for OBCs and maintained a total reservation cap at 50%, excluding the “creamy layer” (more affluent members) of OBCs from reservation benefits.
- The reservation of OBC (27%), SC (15%) and ST (7.5%) resulted in a total reservation of 49.5%.
Nagaraj Case Judgement (2006): The Supreme Court ruled that the state was not bound to provide reservation in promotions to SCs/STs. But if any state wished to make such a provision, it needs to:
- Collect quantifiable data on the backwardness of the class
- Prove its inadequate representation in public employment
- Show no compromise on the efficiency of administration
Jarnail Singh vs Lachhmi Narain Gupta Case Judgement (2018): The Supreme Court held that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the SCs and the STs.
- The Court also held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in promoting SC/ST individuals who belong to the creamy layer of their community.
Janhit Abhiyan Case (2022): The Supreme Court upheld the constitutional validity of the 10% reservation for Economically Weaker Sections (EWS), recognizing economic criteria as a basis for reservation.

International Perspective on Affirmative Action:

The U.S. recently moved away from race-based affirmative action in college admissions, ruling it unconstitutional.
The U.K. practices “positive action,” allowing voluntary measures to address the under-representation of disadvantaged groups.
France focuses on educational measures for low-income students without explicit affirmative action based on race or ethnicity.

Existing Challenges and Recommendations:

The G. Rohini Commission was established to examine sub-categorization among OBC castes to ensure a more equitable distribution of reservation benefits.
Initial assessments reveal that approximately 97% of reserved positions and educational slots have been secured by about 25% of the OBC castes/sub-castes.
Notably, nearly 1,000 out of 2,600 OBC communities have not benefited from reservations in employment or education.
Although sub-categorization has been implemented in 11 states, it has not yet been adopted at the central level.
Similar issues of benefit concentration are observed among SC and ST categories, where no creamy layer exclusion applies.
The government is also examining the extension of SC reservations to include Dalit Christians and Muslims, addressing discrimination and lack of opportunities faced by these groups.
A commission led by former Chief Justice K.G. Balakrishnan is reviewing this aspect.
The overarching goal of these reforms is to continue the pursuit of social justice while balancing it with the constitutional guarantee of equality, thereby making affirmative action more responsive and equitable across all disadvantaged groups.

Source: TH