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RESERVATION as per ARTICLE 15 & 16 BY ATRISHEKHAR - Coggle Diagram
RESERVATION as per ARTICLE 15 & 16
BY ATRISHEKHAR
Constitutional Provisions
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 243T 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.
334
Background
William Hunter and Jyotirao Phule in 1882 originally conceived the idea of caste-based reservation system.
The reservation system that exists today, in its true sense, was introduced in 1933 when British Prime-Minister Ramsay Macdonald presented the ‘Communal Award’.
The award made provision for separate electorates for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans and the Dalits.
After long negotiations, Gandhi and Ambedkar signed the ‘Poona Pact’, where it was decided that there would be a single Hindu electorate with certain reservations in it.
After independence, initially reservations were provided only for SCs and STs.
OBCs were included in the ambit of reservation in 1991 on the recommendations of the Mandal Commission.
Judicial journey of Reservation
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.
In Indra
Sawhney v. Union of India (1992)
case the court examined the scope and extent of Article 16(4).
The Court has said that the creamy layer of OBCs should be excluded from the list of beneficiaries of reservation, there should not be reservation in promotions; and total reserved quota should not exceed 50%.
The article confers power on the state to reserve seats in favour of SC and ST in promotions in Public Services if the communities are not adequately represented in public employment.
The Parliament responded by enacting 77th Constitutional Amendment Act which introduced Article 16(4A).
The Supreme Court in
M. Nagaraj v. Union Of India 2006
case while upholding the constitutional validity of Art 16(4A) held that any such reservation policy in order to be constitutionally valid shall satisfy the following three constitutional requirements:
Jarnail Singh vs Lachhmi Narain Gupta case of 2018
, Supreme Court holds that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes
The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in promotion to SC/ST individuals who belong to the creamy layer of their community
In May 2019 the Supreme Court upheld the Karnataka law that allows reservations in promotions for SCs and STs with consequential seniority.
upheld the constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018.
B.K.Pavitra case 2019
Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021) case:
EWS Reservation
Janhit Abhiyan v Union
of India In a 3-2 majority, the Supreme Court upheld the 103rd Constitutional Amendment providing EWS reservation.
6 more items...
The Supreme Court affirmed the Indra Sawhney decision, and struck down Section 4(1)(a) and Section 4(1)(b) of the Act which provided 12% reservation for Marathas in educational institutions and 13% reservation in public employment
This judgment gave out a strong message that some State governments blatantly disregard the stipulated ceiling on electoral gains rather than any exceptional circumstances.
no reservation for creamy layer SC/ST in promotion
The SC and ST community should be socially and educationally backward.
The SC and ST communities are not adequately represented in Public employment.
Such reservation policy shall not affect the overall efficiency in the administration.
CREAMY LAYER
It is a concept that sets a threshold within which OBC reservation benefits are applicable.
While there is a 27% quota for OBCs in government jobs and higher educational institutions, those falling within the “creamy layer” (various categories based on income and parents’ rank) cannot get the benefits of this quota.
Categories under Creamy Layer:
Income beyond 8 lakh
For those not in government, the current threshold is an income of Rs 8 lakh per year.
The income threshold is supposed to be raised every three years. It was last revised in 2017
Parents’ rank
For children of government employees, the threshold is based on their parents’ rank and not income.
For instance, an individual is considered to fall within the creamy layer if either of his or her parents is in a constitutional post; if either parent has been directly recruited in Group-A; or if both parents are in Group-B services.
If the parents enter Group-A through promotion before the age of 40, their children will be in the creamy layer.
Children of a Colonel or higher-ranked officer in the Army, and children of officers of similar ranks in the Navy and Air Force, too, come under the creamy layer. There are other criteria as well.
Other than the income limit, the current definition of the creamy layer remains the same.
A draft Cabinet note has stated that the creamy layer will be determined on all income, including salary calculated for income tax, but not agriculture income.
The government is considering a consensus on Rs 12 lakh, whereas Parliament Committee has recommended to raise upto 15 lakh per year.
It also recommended excluding salary and agricultural revenue while calculating the annual income ceiling for the creamy layer category of OBCs
Further, the Justice Rohini committee is considering the sub-categorization of OBC quota and if any particular community or group of communities are benefiting most from the OBC quota and how to iron out anomalies.
The Supreme Court in the case pointed out that while in the case of employment under the State, Article 16(4) provides for reservations in favour of backward class of citizens, no such provision was made in Article 15.
Pursuant to the Supreme Court’s order in the case the Parliament amended Article 15 by inserting Clause (4).
Mandal Commission
In exercise of the powers conferred by Article 340 of the Constitution, the President appointed a backward class commission in December 1978 under the chairmanship of B. P. Mandal.
The commission was formed to determine the criteria for defining India’s “socially and educationally backward classes” and to recommend steps to be taken for the advancement of those classes.
The Mandal Commission concluded that India’s population consisted of approximately 52 percent OBCs, therefore 27% government jobs should be reserved for them.
The commission has developed eleven indicators of social, educational, and economic backwardness.
Apart from identifying backward classes among Hindus, the Commission has also identified backward classes among non-Hindus (e.g., Muslims, Sikhs, Christians, and Buddhists.
It has generated an all-India other backward classes (OBC) list of 3,743 castes and a more underprivileged “depressed backward classes” list of 2,108 castes.
Balaji v. St. of Madras
Supreme Court observed that the limit of 68% was put without any reasonable grounds and was excessive in nature. Hence, the court fixed the limit to 50% reservation in public employment and educational
T. Devadasan v. Union of India
the question that was arisen before the court was whether the 50% reservation policy laid down in Balaji case applicable to the posts which were carried forward for the next year also
This was found to be unconstitutional and against the provisions of the earlier Apex Court judgement. It was held that it would disintegrate the rights enshrined in Article 14 and 16(1)
Kelkar commisssion
conflicting wordings in Article 15 &article 46
RERSEVATION IN PROMOTION
Article 16 (4): Provides that the State can make any provision for the reservation of appointments or posts in favour of any backward class of citizens who, in the opinion of the state, are not adequately represented in the services under the State.
Article 16 (4A): Provides that the State can make any provision for reservation in matters of promotion in favour of the Scheduled Castes and the Scheduled Tribes if they are not adequately represented in the services under the State.
Article 16(4B): Added by the 81st Constitutional Amendment Act, 2000 which enabled the unfilled SC/ST quota of a particular year to be carried forward to the next year.
Article 335: It recognises that special measures need to be adopted for considering the claims of SCs and STs to services and posts, in order to bring them at par.
82nd Constitutional Amendment Act, 2000 inserted a condition at the end of Article 335 that enables the state to make any provision in favour of the members of the SC/STs for relaxation in qualifying marks in any examination.
Mukesh Kumar and Another vs State of Uttarakhand
& Ors. 2020:
In this Case, the Supreme Court held that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution rather they are enabling provisions for providing reservation, if the circumstances warrant.
However, these pronouncements in no way understate the constitutional directive under Article 46 that mandates that the state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular Scheduled Castes and Scheduled Tribes.
In fact, sensitivity of the welfare state towards the weaker sections over decades resulted in the gradual expansion of canopy of reservation in the form of increasing classifications under Article 16, a set of actions that created a wave of litigation by which resulted in the ever-evolving jurisprudence of affirmative action in public employment.
Employment of Local Candidates
Supreme Court Judgements regarding reservation in private jobs
Dr. Pradeep Jain v Union of India (1984) case: The Supreme Court discussed the issue of legislation for “sons of the soil”. Further, The court held an opinion that such policies would be unconstitutional but did not expressly rule on it.
Sunanda Reddy v State of Andhra Pradesh (1995) case: The Supreme Court repeated its earlier interpretation in Dr Pradeep Jain case. Further, the court strikes down the state government policy that gave 5% extra weightage to candidates who had studied with Telugu as the medium of instruction.
The Rajasthan government gave preference to “people belonging to the concerned district or the rural areas of that district” in appointments. But, in 2002 the Supreme Court invalidated the appointment of government teachers in Rajasthan.
In 2019, the Allahabad High Court struck down a recruitment notification issued by the Uttar Pradesh Subordinate Service Selection Commission. The commission prescribed preference for women who were original residents of the state in job appointments.
RECENT ISSUES
IN 2021 Haryana provides for a 75 per cent job quota for local people in private sector jobs which offer a salary of less than Rs. 50,000 a month.
Reservation to locals also violates Article 19(1)(g) is violated by Haryana’s law as outsiders won’t be able to effectively do any job of their choice in the state.
Article 16(3) allows reservation based on the residence by a parliamentary law in matters of public employment and not in private employment.
The Supreme Court on 17 feb 2022 set aside the interim order of the Punjab and Haryana High Court which stayed the operation of the Haryana law
No Coercive Steps Against Employers Under Haryana Law Providing 75% Job Quota For Locals Till HC Decides Validity : Supreme Court
The MP government in 2018 made it mandatory to give 70% of jobs to locals. But this law was not implemented on the private companies as a whole.
Andhra Pradesh also passed a law to provide job reservation for locals. It reserved 75% private jobs across all categories in industrial units, factories, joint ventures as well as Public-Private Projects. The law passed by the Andhra Pradesh assembly is currently challenged in the court and the court is yet to decide on it.
The Karnataka government also approved a new industrial policy (2020-2025) in 2020. The policy aims to give minimum employment of 70 per cent employment to Kannada people on an overall basis. Further, the reservation went up to 100 per cent in the case of Group C and Group D employees.
The constitution under Article 16 and Article 371 mentions the Reservation in jobs.
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.
32nd Constitutional Amendment Act, Article 371D was added authorizing domicile qualification for Andhra Pradesh and now Telangana. For other states, Parliament still has to enact a law to provide for domicile quota like the previously enacted 1957 act .
Rationale behind such reservation in private jobs
The objective is to empower the local youth by giving them better jobs.
In recent times, the government was not able to generate sufficient employment. So, reservations in private jobs are seen as essential to avoid higher unemployment among local people.
Since the private sector uses public infrastructure in many ways like subsidized allotment of land, tax exemptions etc. The state has a legitimate right to require them to comply with the reservation policy.
The Supreme Court in its earlier judgements has supported domicile reservation in education. So, the state governments assume that the court will allow similar reservations in private jobs as well.
Globally also many countries allow such reservation in private jobs. For example,
The US Civil Rights Act of 1964 allows the courts to order monetary damages and relief, for victims of discrimination(i.e local people).
The Employment Equity Act in Canada also protects minority groups from job deprivation. The Act protects the native people from discrimination in all the federally regulated industries, even in the private sector.
Various state governments have been pressurizing
private institutions for reservation;
can the
government impose such reservation?
• Apex court in P.A. lnamdar judgement in 2005, private unaided education institutions cannot be forced to have quotas due to Article 14 and Article 19(1) (g).
• While private enterprises are commercial entities and hence singling out one private sector entity,while leaving out others is violation of Art 14 and they also can carry out their occupation due to freedom of profession as seen in Art 19(1) (g).
• To get around this judgement, 93rd Constitution Amendment Act was passed wherein; Article 15(5) was added .
• While minority institutions were omitted, special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes relating to their admission in educational institutions can be done only through law.
• But reservation in government jobs doesn't need a law; they can be brought through an executive order, because a requirement of law was not present in Article 16(4).
• Similarly, while law is required to make provision for backward classes in educational institutions, no such law is required for EWS quota as per article 15(6) after the 103CAA
for women
In 1997 Vishakha vs. State of Rajasthan case, the apex court laid down the guidelines for protection of women from sexual harassment at workplace.
The court said that such harassment of women at workplace leads to violation of Articles 14, 15, and 23.
some statements
Marc Galanter
affirmative action/Reservation is a COMPENSATORY JUSTICE
Ram CHANDRA guha
Reservation policy in india has More HEAT THAN LIGHT
Jhon RAWL
JUSTICE IS FAIRNESS
vEIL OF ignorance
Justice is a characterstics of soul
in obc
race to bottom has stareted
dominant caste
lot of castes are included for political pacification
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