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Reservation-Reviewing 50 Percent cap (9 March 2021)

Reservation-Reviewing 50 Percent cap (9 March 2021)

Context:

  • The Supreme Court on Monday decided to examine whether the 1992 verdict by a nine-judge bench capping quota at 50% needed to be revisited in view of subsequent constitutional amendments and changed social dynamics.

Background:

  • The State of Madras v. Smt.Champakam Dorairajan (1951) case was the first major verdict of the Supreme Court on the issue of Reservation. The case led to the First Amendment in the constitution.
Summary of the Debate

What is the issue?

  • The Maharashtra government decided to grant 16% reservation of total seats to the Marathas.

  • Bombay High Court reduced it to 12% in govt jobs and 13% in educational institutions.

  • The decision was challenged before the Supreme Court and the Supreme Court stayed the former’s order.

  • The Supreme Court raised the question that whether the 1992 verdict needs to be referred to a larger bench in the light of subsequent constitutional amendments, judgements and changed social dynamics of the society.

Reasons to take a relook:

  • The main issue is with regard to exceeding 50 percent quota of the reservation by the states.

  • Since 1992, many states have like Maharashtra, Telangana, Andhra Pradesh, Madhya Pradesh, etc have passed the laws breaching the limit of 50 percent.

Indra Sawhney & Others vs Union of India, 1992:

It was a nine-judge verdict which decisively laid down several landmark propositions:

  • 50% threshold in reservations: The SC had held that the reservation shall not exceed 50%.

  • Reservation in promotion: Reservation for backward classes should be confined to initial appointments only and not extend to promotions.

  • Concept of ‘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.

Supreme Court to examine whether to review 50% cap on quota | India News -  Times of India

Constitutional Provisions related to Reservation:

  • Article 15 (3): Empowers the State to make special provisions for women and children.

  • Article 15(4): Authorises the State to make special provisions for advancement of socially and educationally backward sections or SC/STs.

  • Article 15(5): State can make reservation in admission to education institutions, whether or not aided by government.

  • Article 16: Allows Parliament to enact a law with residence qualifications necessary for government jobs, thus introducing the domicile-based preferential treatment.

  • Article 16 (3): Allows Parliament to enact a law with residence qualifications necessary for government jobs.

  • Article 16(4): Allows the State to make reservation for any backward class of citizens, which in the opinion of the state is not adequately represented in services.

  • Article 16(4A): To enable the government to provide reservation in promotion.

    • A new clause (4A) was inserted in Article 16 through the 77th Constitutional Amendment Act, 1995.

    • 85th Constitution Amendment Act, 2001 modified clause (4A), to provide consequential seniority to SC and ST candidates promoted by giving reservation.

  • Article 16 (4 B): 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 50 percent reservation on total number of vacancies of that year.

    • It was inserted under Constitutional 81st Amendment Act, 2000.

  • Article 330: Provides for specific representation through reservation of seats for SCs and STs in the Parliament

  • Article 332: Provides for specific representation through reservation of seats for SCs and STs in the in the State Legislative Assemblies.

  • Article 243D: Reservation of seats for SCs and STs in every Panchayat.

  • Article 233T: Reservation of seats for SCs and STs in every Municipality.

Current scenario of Reservation in India:

  • 15 % seats are reserved for Scheduled Castes (SC).

  • 7.5 % seats are reserved for Schedule tribes (ST).

  • 27 % seats are reserved for Other backward classes (OBC).

    • Earlier, the reservation was meant to be only for SCs and STs. OBCs were included in the ambit of reservation in 1991 on the recommendations of the Mandal Commission.

  • The Constitutional (103rd Amendment) Act of 2019 has provided 10% reservation in government jobs and educational institutions for the “economically backward classes” in the unreserved category.

  • Under Article 341 and Article 342, the power of declaring a particular community as SC and ST is vested in Parliament.

Conclusion:

  • The reservation phenomenon has certainly helped in uplifting the backward classes but there is a long way to go before all historical wrongs are set right. The Policy of reservation results in social upliftment of marginalized sections, Reservation is necessary to provide equality, equity, and diversity in society. However, established a balance between social mobility and merit, there is a need for rationalizing this current policy.

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