Positive Discrimination
: Reservation to Government Posts
Protective
discrimination
Article 15:
Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only
of
- religion
- race,
- caste,
- sex,
- place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of
birth or any of them, be subject to any disability, liability, restriction or
condition with regard to—
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) The use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to the
use of the general public.
State of Madras v Champakam Dorairajan(1951)
Government Order (G.O.) about reservation in educational institutions. (medical and engineering colleges
maintained by the state of Madras)
In 1951 - Smt. Champakam Dorairajan, who was a Brahmin woman from Madras - not able to join the
medical school despite having good grades.
For every 14 seats to be filled the number of candidates selected was as follows:
Non-brahmins Hindus – 6
Backward Hindus – 2
Brahmins – 2
Harijans – 2
Anglo-Indians and Indian Christians – 1
Muslims – 1
[HC – 226] [Appeal to SC]
Supreme Court : Violation of Article 15 & Article 29(2)
Article 15(4)
(4) Nothing in this article or in clause (2) of article 29 shall
prevent the State from making any special provision for the
advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the
Scheduled Tribes.
M R Balaji v State of Mysore(1963)
- 1958- State Government of Mysore passed an order which placed all the communities, except the
Brahmin community, in the category of educationally and socially backward classes, Scheduled Castes
and Scheduled Tribes.[75% reservation]
- 1962 the State classified the backward classes into two categories, namely, backward classes and more
backward classes. Further, it reserved 68% of the seats for socially and educationally backward classes,
Scheduled Castes and Scheduled Tribes in the State Engineering and Medical Colleges, - 32% of the seats
for the merit pool.
Supreme Court- Article 15(4) could be made by an executive order [not just president]
-both social as well as educational.
- sub-classification of backward classes - backward classes and more backward classes - outside the scope
of Article 15(4).
-national interest would suffer -50%
T Devadasan v Union of India (1964)
“carry forward rule case”
- had raised to more than 50% because
- 1961- U.P.S.C. competitive examination - for the position of Assistant
Superintendent to fill 45 vacancies of which 29 vacancies were
reserved for SCs and STs
- The petitioner challenged - normal quota of 17% for Scheduled
Castes and Tribes
Supreme Court - permissible limits of reservation equating both
Articles 15(4) and 16(4). [50%].
Article 16 : Equality of
opportunity in matters of
public employment
(1) There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or office under
the State.
(3) Nothing in this article shall prevent Parliament from making any
law prescribing, in regard to a class or classes of employment or
appointment to an office under the Government of, or any local or
other authority within, a State or Union territory, any requirement as
to residence within that State or Union territory prior to such
employment or appointment.
(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.
State of Kerala vs. N.M.Thomas
- 1956, the Travancore-Cochin State Government made directions
concerning the qualification standards for examinations relating to
various tests.
- State Government in favour of Scheduled Caste and Scheduled Tribes
directed that such qualification standards should be lower for people
belonging to these classes as compared to others.
- Observed that a large number of State Government employees
belonging to SC and ST were facing difficulties in their promotion due to
the requirement of such qualification tests. The State Government came
up with Rule 13AA
- one of the respondents was not promoted despite passing all the tests
by 1971. Whereas many lower division clerks belonging to the SC and ST
were promoted even when they hadn’t passed the tests.
In response to this, the respondent filed a Writ Petition under Article 226
of the Constitution before the High Court of Kerala. The Respondent
argued that such Rules giving additional exemptions to the employees
belonging to the SC and ST are violating Article 16 of the Constitution.
HC – Accepted it as the violation of article 16
Now appeal to SC by State.
Supreme Court
- The Court declared Rule 13AA of the Rules valid and set aside the
judgement of the High Court of Kerala.
- reasonable classification - - 14, 15 and 16 which commonly provide
equality rights, supplement each other.
- shall not compromise the efficiency of the services
- 16 plus DPSP – upliftment of weaker sections
Supreme Court
- The Court declared Rule 13AA of the Rules valid and set aside the
judgement of the High Court of Kerala.
- reasonable classification - - 14, 15 and 16 which commonly provide
equality rights, supplement each other.
- shall not compromise the efficiency of the services
- 16 plus DPSP – upliftment of weaker sections
MANDAL COMISSION
- Reservation of 27% public sector and government jobs for OBCs for those
who do not qualify on merit.
- The reserved quota, if unfilled, should be carried forward for a period of 3
years and deserved after that.
- A list will be made for backward classes, similar to the list for SCs and
STs
Indra Sawhney v.
Union of India.
- Whether Article 16(4) an exception to Article 16(1) and would be
exhaustive of the right to reservation to posts in services under the State
- 6(4) - exceed 50%
- would it extend to promotions as well..?
Constitution (Seventy-seventh
Amendment) Act, 1995
Article : 16 (4A)
Nothing in this article shall prevent the State from making any provision
for reservation in matters of promotion, with consequential seniority, to
any class or classes of posts in the services under the State in favour of
the Scheduled Castes and the Scheduled Tribes which, in the opinion of
the State, are not adequately represented in the services under the State.
Constitution (81st Amendment)
Act, 1995
Article 16(4B)
Nothing in this article shall prevent the State from considering any unfilled
vacancies of a year which are reserved for being filled up in that year in
accordance with any provision for reservation made under clause (4) or
clause (4A) as a separate class of vacancies to be filled up in any
succeeding year or years and
- such class of vacancies shall not be considered together with the
vacancies of the year in which they are being filled up for determining the
ceiling of fifty percent reservation on total number of vacancies of that
M Nagaraj v UOI (2006)
Supreme Court -The Court upheld the amendment stating that the
amendment merely alters the law relating to reservations.
-It does not impinge upon the right to equality which is a fundamental
right and part of basic structure of the Constitution.
- Further it held that Clause (4A) is derived from Clause (4) of Article 16.
- quantifiable data to show backwardness and inadequacy of
representation
- maintain - efficiency
EWS Reservation(103rd
Amendment)
(6) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any
economically weaker sections of citizens other than the classes mentioned
in clause (4),
- in addition to the existing reservation and subject to a maximum of ten
per cent. of the posts in each category.
EWS Reservation
- unreserved category – annual income is below 8 lakh rupees
[SC, ST or OBC]
- 10 percent
Income [financial year prior to the application]
– salary
- agriculture
- business
- any other profession
EWS Reservation
- 5 acres of agricultural land or more
- Residence area 1000 sq ft and above
- Residential plot 100 sq yards or above – notified municipalities
- Residential plot 200 sq yards or above – not – notified municipalities
Family
- Parents
- Siblings (below age of 18)
- Spouse
- Children (below 18)
Janhit Abhiyan v.
Union Of India (2022)
Q. Whether reservation could be granted on the sole criteria of economic
status?
Q. Whether SCs, STs and OBCs could be excluded from the scope of EWS
Reservations?
Q. Whether the EWS Reservation could breach the ceiling (50%) for
reservations that were fixed by the Court in Indra Sawney?
THANKY
OU
