SC On Continuation Of Reservation For Jobs And Education

KEY TAKEAWAYS

• The reservation of jobs and education for the socially backward classes or classes lacking representation has been prevalent in India since the Constitution has come to force in 1950.
• There has been various provisions and amendments brought to the Constitution to that effect.
• The Apex Court feels that the present situation demands the elimination of the established individuals who earlier belonged to such socially backward classes from such list.
• The arguments of both the parties in the clutch of cases heard in this regard by the Supreme Court was considered inconclusive, owing to which the Court could not arrive at a judgement.
• The arguments pertaining to this case would resume on the 22nd of March.

INTRODUCTION

The Supreme Court, over the past weeks, have been hearing a plea which has been filed by the well-known geologist Dr. Sachchida Nand Pandey. A five-judge Constitution bench headed by Justice Ashok Bhushan heard such plea which claims that, "IITs are not following the transparent processes for recruiting the faculty members which open up the window for non-deserving and useless candidates to enter into the IITs through the connection that increased the chances of corruption, favouritism and discrimination."

Senior advocate Mukul Rohatgi who appeared for the State of Maharashtra, claimed that the Mandal judgement, also known as the Indra Sawhney Case which provided for capping the quota for backward classes needed a “re-look” in changed circumstances such as now, for aspects like the changes in demographics and the boom in population which has reached a number of 1.3 billion in the recent times. He said an attempt should be made by the courts review the changed circumstances of some of the people belonging to the prescribed backward classes who have come out of backwardness to avail the quota based on their necessity.

Advocate Ashwani Kumar Dubey representing the petitioner, the renowned geologist Dr. Pandey, in the instant case contended that “the process of taking admissions in the Research Program and appointment of faculty members by the IITs are completely unconstitutional, illegal and arbitrary."

Arguing in favour of the Maharashtra law granting quota to Marathas, Senior Advocate Mukul Rohatgi, in his argument, referred to various aspects of the Mandal judgement or Indra Sawhney case. He asserted that the decision of granting a quota of upto 10 per cent in order to support people from the economically weaker sections of the society, which the Central Government had proposed, breached the 50 per cent cap of the reservation quota.

BACKGROUND OF RESERVATION

The Constitution of India provides for the reservation for the backward classes and the underprivileged, in jobs provided by the Government and the various educational institutions in terms of admission and the payment of fees. Such reservations have been in action since the date of implementation of the Constitution and some others have been brought about by subsequent amendments.

The Supreme Court in 1993, ruled in the famous Indra Sawhney & Others v. Union of India, famously referred to as the Madal judgement, held the reservations in job promotions of the backward classes to be "unconstitutional" but, at the same time, allowed for its continuation up to five years.

The 81st Amendment of the Constitution, in the year 2000 permitted the government to treat the backlog of the reserved vacancies to be a group to which the ceiling limit of 50 per cent reservation would not be made applicable. A provision to provide for the concessions to the socially backward classes was inserted in Article 335 by the 82nd Amendment.

The validity of such amendments when challenged in the Supreme Court, the apex Court upheld the amendments but called upon the states to show the existence of "compelling reasons" – such as "backwardness", "inadequacy of representation" and overall "administrative efficiency - before providing for reservation. The court held that such provisions, by their nature are enabling provisions, thus making it a requisite for the states to produce quantifiable evidence which displays the backwardness of the class and their inadequacy of representation.

DETAILS

The bench in its observation said that “70 years have passed since independence and the states have been carrying on so many beneficial schemes and can we accept that no development has taken place, that no backward caste has moved forward.”

“If there is no 50 per cent or no limit, as you are suggesting, what is the concept of equality then. We will ultimately have to deal with it. What is your reflection on that... What about the resultant inequality. How many generations will you continue,” the bench, comprising Justices L Nageswara Rao, Hemant Gupta, S Abdul Nazeer and S Ravindra Bhat and headed by Justice Ashok Bhushan remarked.

The Attorney General, K K Venugopal, reminded the Supreme Court, pertaining to the instant case of the 102nd amendment to the Constitution of India, implemented from the year 2018 allows the respective State Legislatures to enact laws and formulate regulations which identified, recognised and determined the Socially and Educationally Backward Classes (SEBC) and confer benefits on such individuals. Such amendment was brought vide Article 338B, dealing with the structure, duties and powers of the National Commission for Backward Class (NCBC), and Article 342A, which states in its Clause (1) that “the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory,” might be notified by the President in consultation with the Governor. The Parliament may also, by the provisions of Clause (2), “by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, which deals with power of the President to notify a particular caste as SEBC as also of Parliament to change the list.”

CONCLUSION

The top court has been hearing a number of cases which challenged the prior verdict of the Bombay High Court in which the Court had upheld the grant of quota to Marathas while considering the admissions and government jobs offered by the State in the state.
“Yes, we have moved forward. But it is not that backward classes have gone down from 50 to 20 per cent. We still have starvation deaths in this country... I am not trying to say that Indra Sawhney is completely wrong, throw it in the dustbin. I am raising issues that 30 years have gone by, the law has changed, the population has grown, backward persons may also have increased,” Rohatgi said while arguing in order to revise such capping of quotas.

“The fact of the matter is Parliament should know what is going on in the country. If Parliament knows it is more than 50 per cent and has given 10 per cent to a class of economically backward section, no warrant from court should say it cannot go over 50 per cent. When a number of states have reservations exceeding 50 per cent and in this situation, it cannot be said that this is not “a burning issue” and does not require a relook after 30 years,” Advocate Rohatgi stated in the argument.

The arguments pertaining to this case would resume on 22nd March, owing to the inconclusiveness of such arguments already considered by the Court.