In January 2019, Government of India announced Reservation for Unreserved community also known as Upper Caste People and gave rise to a new kind of dispute:
The 9 judges Constitution Bench of the Supreme Court by 6-3 majority gave the following judgements:-
I. Backward class of citizen in Article 16(4) can be identified on the basis of the caste system & not only on economic basis.
II. Article 16(4) is not an exception of Article 16(1). It is an instance of the classification. Reservation can be made under article 16(1).
III. Backward classes in Article 16(4) were not similar to as socially & educationally backward in article 15(4).
IV. Creamy layer must be excluded from the backward classes.
V. Article 16(4) permits classification of backward classes into backward & more backward classes.
VI. A backward class of citizens cannot be identified only & exclusively with reference to economic criteria.
VII. Reservation shall not exceed 50%.
VIII. Reservation can be made by the ‘EXECUTIVE ORDER’.
IX. No reservation in promotion.
X. Permanent Statutory body to examine complains of over – inclusion / under – inclusion.
XI. Majority held that there is no need to express any opinion on the correctness or adequacy of the exercise done by the MONDAL COMMISSION.
XII. Disputes regarding new criteria can be raised only in the Supreme Court.
- Can reservation be given based on economic condition
- Can reservation be given beyond 50% ceiling set by Supreme Court of India
Well for now the 124th Constitution Amendment Bill has been passed by the Parliament which is 103rd Amendment in Constitution of India that has amended Article 15 and 16. But the debate has started in light of the famous Indra Sawhney & Others Vs.Union of India case decided by Supreme Court of India in 1992 and it is speculated that Supreme Court may declare it null and void.
Lets see what's the inside story of this Landmark Case in the History of India.
Case : Indra Sawhney & Others Vs.Union of India
Court: Supreme Court of India
Date of Judgement: 16.11.1992
Background:
On January 1, 1979 the JANATA Government headed by the Prime Minister Sri MORARJI DESAI appointed the second Backward Classes. The commission chaired by B.P. Mandal submitted its report on December, 1980 in this report the
commission identified about 3743 castes as socially &
educationally backward classes& recommended for reservation of 27%
in Government job. Prime Minister V.P.SINGH issued office of memorandum on AUGUST 13,
1990& reserved 27% seats for the Socially & Backward classes. Prime Minister P.V. NARSHIMA RAO issued another office of memorandum
by making 2 changes i) by introducing the economic criterion in
granting reservation within 27% in Govt. Job. & ii) Reserved
another 10% of vacancies for the socially & educationally backward
classes. That is total 37% (27% 10%). This matter was referred to the 9 judges bench who issued a notice to the
Govt. to show cause the criteria upon which the GOVT. has proposed to
make 27% reservation for them. But in spite of taking several
adjournments the GOVT. of INDIA has failed to explain the criteria
mentioned in the office of memorandum.
Judgement:-
The 9 judges Constitution Bench of the Supreme Court by 6-3 majority gave the following judgements:-
I. Backward class of citizen in Article 16(4) can be identified on the basis of the caste system & not only on economic basis.
II. Article 16(4) is not an exception of Article 16(1). It is an instance of the classification. Reservation can be made under article 16(1).
III. Backward classes in Article 16(4) were not similar to as socially & educationally backward in article 15(4).
IV. Creamy layer must be excluded from the backward classes.
V. Article 16(4) permits classification of backward classes into backward & more backward classes.
VI. A backward class of citizens cannot be identified only & exclusively with reference to economic criteria.
VII. Reservation shall not exceed 50%.
VIII. Reservation can be made by the ‘EXECUTIVE ORDER’.
IX. No reservation in promotion.
X. Permanent Statutory body to examine complains of over – inclusion / under – inclusion.
XI. Majority held that there is no need to express any opinion on the correctness or adequacy of the exercise done by the MONDAL COMMISSION.
XII. Disputes regarding new criteria can be raised only in the Supreme Court.
Significance:
This is a very important case as it put a ceiling on the reservation that can be provided by the Governement. In the absence of this Judgement, may be there would be 100% reservation.
References: Shashank tyagiGNLU Gandhinagar
124th Constitution Amendment Bill
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