Q) Explain the conditions and the procedure adopted to provide a caste-based reservation to a community in India. What are the principles guiding the present scheme of such reservations? (250 Words)
Source: https://www.thehindu.com/news/national/sc-declares-maratha-quota-law-unconstitutional/article34487043.ece, https://indianexpress.com/article/explained/maharashtra-maratha-quota-supreme-court-verdict-7303546/
GS 1: Social empowerment, GS 2: Vulnerable sections
Introduction: The constitution of India provides for reservations in favour of Scheduled Caste, Scheduled tribes and other socially and educationally backward communities. The identification of SC, ST and OBCs have been a challenging task since the independence.
1. Initial Notification by the President: Article 341(1) empowers the President to specify certain castes or groups or tribes as either SC or ST. For example - ‘Constitution (Scheduled Castes) Order-1950’ and the ‘Scheduled Castes and Scheduled Tribes List (Modification) Order-1956.
2. Consultation with Governor: Such a consultation is mandatory, however, the President may or may not heed to such a recommendation.
3. Powers of the Parliament for all subsequent amendments: Parliament can by law include or exclude a group in to a list of SC or ST. Thus now only Parliament can amend this list.
1. A Commission formed for the purpose: Article 340, empowers president to form a commission to investigate the conditions of Socially and educationally backward classes. The second backward classes commission or Mandal Commission(1989) was formed under it, which recommended 27% reservation for backward classes.
2. States can have their own list of OBCs: The 1st Backward Classes commission (1953) allwed the states to identify the OBCs
3. Notification by the President: Article 342A empowers president to notify the list of socially & educationally backward classes.
4. Procedure after 102nd Amendment act, 2019: introduction of National Backward Classes Commission to participate and advice on the socio-economic development of socially and educationally backward classes and evaluate the progress of their development under the Union & the state. Thus now only Parliament can amend the one single list of OBCs.
1. Low social position in the traditional caste hierarchy of Hindu society.
2. Lack of general educational advancement among the major section of a caste or community.
3. Inadequate or no representation in government services.
4. Inadequate representation in the field of trade, commerce and industry
1. Right to Equality: The provision of reservation is held within the ambit of Right to equality under Article 15 and 16. Thus it follows the principle of socio-economic equality.
2. 50% Rule, preventing violation of liberty: It is an extreme form of measure and therefore must apply to minority number of seats. Total quota should not exceed 50% and cannot exceed the total strength of a certain class. Reiterated in the recent Maratha Reservation case.
3. Addressing social backwardness: Backwardness as contemplated by the article 16(4) is mainly social.
4. 'Means test' to separate creamy layer: Advanced section(Creamy layer) removed from the list of beneficiaries of reservation. In Indira Sawhney case SC said that "economic criterion could be adopted as an indicium or measure of social advancement". Subsequently Ram Nandan Committee was formed to identify Creamy layer criteria.
5. Under-Representation rule: The class must be backward and should not be represented in the services under the state.
6. Judicial review: Identification of the backward class has been subject to judicial review.
7. Permanent statutory body to examine the complaints of over-inclusion. Thus National Commission for Backward classes(NCBC) was formed.
8. Power with the center: Only the President could make changes to the Central List of socially and backward classes based on data given from various sources, including the National Commission for Backward Classes, as held in Maratha reservation Judgment.
9. States' powers: The States could only make “suggestions”. The “final exercise” of including castes and communities was done by the President alone.
10. Efficiency Criteria: Under Article 335 constitution ties to minimise the adverse impact on "the overall efficiency of administration".
Conclusion: The affirmative action provided in the constitution of India to establish reservation works on the principle of Eqality, Liberty and Justice. It establishes social equality and justice with reservation and also limits the reservation in order to protect individual liberty under article 21. The recent Supreme court Judgement on Maratha reservation case works on this principle.