This Article is written by Biswayan Bhattacharjee (currently pursuing BBA LLB from KIIT School of Law, Bhubaneswar)
The great Indian debate on the reservation is a relevant topic that can drastically change the prospects of not only jobs in the Government but also education in government-aided institutions. People have contrasting opinions on the reservation system. While one school of thought is that it is necessary to uphold the various sections of people who are lagging behind both economically and historically, the other insists that there should be a balance between upholding the socially backward classes and promoting merit in the organisation. When the state gives more preference to the backward classes than maintaining this said balance, it affects the meritocracy of the employee workforce.
CHRONOLOGY OF EVENTS
The tussle between the parliament and judiciary in the matter of reservation started in the year 1979 when the Mandal Commission[i] made a thorough research of the population and recommended a total reservation limit of 50% in government institutions. However, the recommendation was not adhered to by the parliament at that time. In 1990, a memorandum to enforce the same recommendations along with a claim for an extra 10% reservation for the Economically Weaker Sections (EWS) was challenged in the court.
This matter existed till 1992 when the Supreme Court gave its judgement on the Indira Sawhney Case[ii]. In this case, the court upheld a limit of 27% in the seats of Other Backward Classes (OBC) which, when added to the rest of the classified and reserved seats amounted to 50% of the total number of seats available. This means that the rest 50% of the seats are to be filled through a regular recruitment process which can be taken by generals or any backward classes. According to the court, this limit of 50% in a reservation is made to maintain a balance between the state’s duty to uphold special provisions for the betterment of backward classes and giving justice to the meritorious and deserving candidates. However, this limit can only be disregarded in cases of exceptional conditions. Notably, in the same judgement, the claim of 10% reservation for the EWCs was denied.
However, much later in 2019, Parliament enforced the 103rd Constitutional Amendment Act[iii] which included Article 15(6)[iv] and Article 16(6) in the Indian Constitution. Article 15(6) provides for the reservation of economically weaker sections in educational institutions whereas Article 16(6) mandates the reservation for the EWS in government job posts. It provided that a total of 10% reservation would be provided to the EWS. Therefore, this act practically overruled the Indira Sawhney Judgement, 1992 in respect of reservation for Economically Weaker Sections.
This case paved the way to a stable reservation system up until 2018 when the Socially and Educationally Backward Classes Act, 2018[v] (SEBC) was enacted by the government of Maharashtra. In this act, by the recommendations of the Maharashtra State Backward Classes Commission, a reservation for 16% in educational institutions and 16% in public services was enforced. This exceeded the given 50% total limit that is marked by the Indira Shawney Case. This case was challenged in Supreme Court which later resulted in the Maratha Judgement in 2021.
In the same year, the parliament enacted the 102nd Constitutional Amendment Act, 2018[vi] which included Article 338 B and Article 342 A to the Indian Constitution. By virtue of article 338 B, the National Commission for Backward Classes (NCBC) became a constitutional body tasked with the responsibility to list the communities that are notified as backward for the purpose of reservation. Article 342 A was made to identify the backward classes that could come under SEBC which stated that the President will determine the socially and educationally backward classes in collaboration with the governor. To put it all simply, the president got the power to identify the SEBCs while the NCBC was tasked to maintain a list of the same.
Does this mean that the power to maintain the OBC list by individual states had been taken away by the 102nd Constitutional Amendment Act? This question was answered later in the Maratha Judgement in 2021.
The SEBC Act,2018 and the 102nd Constitutional Amendment paved the way to the judgement of Jaishri Laxmanrao Patil v Chief Minister, Maharashtra[vii], also known as the Maratha reservation case of May 5, 2021. The important questions before the apex court in this case were:
1. Whether the Maharashtra State Reservation (of seats for enrollment in educational institutions in the State and for appointments in the State’s public services and posts) for Socially and Educationally Backward Classes (SEBC) Act, 2018, as amended in 2019, giving 12 per cent and 13 per cent social reservation to the Maratha community in addition to 50 per cent reservation, is covered by exceptional circumstances?
2. Whether the State Government has made out a case of the presence of unusual situations and exceptional conditions in the State to come inside the exemption carved out in the Indra Sawhney verdict on the basis of the Maharashtra State Backward Commission Report chaired by M.C. Gaikwad?
3. Whether the Constitution’s 102 Amendment deprives the State Legislature of its enabling right to adopt legislation identifying socially and economically disadvantaged groups and conferring benefits on them?
The apex court was of the view that the ceiling of 50% as set in the Indira Shawney case should not be breached except under exceptional circumstances. The Gaikwad Commission, the Bombay High Court’s decision, and the SEBC Act all fail to define an “exceptional situation” that would qualify for an exception to this limit. As a result, the SEBC Act is unconstitutional insofar as it identifies and gives reservations to Marathas.
In addition, the court determined that the 102nd Constitutional Amendment does indeed deprive states of the right to identify backward groups. According to Article 342 A, only the President has the authority to notify a list that names them, which Parliament can then change. States are limited to making recommendations.
The parliament overruled the Maratha Judgement later on 19th August 2021 by enforcing the 105th Constitutional Amendment Act[viii]. The President may only disclose the list of socially and educationally backward classes for the objectives of the federal government, according to the act. The federal government will prepare and maintain this central list. In addition, the Act enables states and union territories to create their own list of socially and educationally disadvantaged groups. This list, which may differ from the central list, is required by law.
The NCBC must be consulted on all key policy topics affecting the socially and educationally backward groups, according to Article 338B of the Constitution. States and union territories are excluded from this requirement for matters relating to the preparation of their list of socially and educationally backward classes, according to the legislation.
Throughout the course of history, it is evident that the Parliament and the Judiciary are like two sides of the same coin which rarely meet at a common agreement. Whenever one comes up with a decision, the other overrules that with its power.
After the 105th Amendment, the states are free to maintain their own state list of OBCs and can include new entries whenever they feel the necessity. This, however, will violate the 50% ceiling of reservation that was preferred to be set by the judiciary. The result of this could be a lack of seats for the common general category candidates in government jobs and educational institutions. In the long term, this may lead to a detrimental effect on the overall meritocracy of the recruited workforce of the country.
However, it is only a matter of time before which the 105th Amendment might be challenged in the court of law to try and strike it down as unconstitutional for violating the guidelines given in Indira Sawhney judgement and disregarding the judgement of the Maratha reservation case.
[iii] THE CONSTITUTION (ONE HUNDRED AND THIRD AMENDMENT) ACT, 2019 – https://egazette.nic.in/WriteReadData/2019/195175.pdf
[iv] Article 15(6), 16(6) of Indian Constitution – https://www.scconline.com/blog/post/tag/articles-156-and-166-in-constitution-of-india/
[v] Socially and Educationally Backward Classes Act, 2018 – https://www.indiacode.nic.in/bitstream/123456789/6131/1/sebc_act.pdf
[vi] 102nd Constitutional Amendment Act, 2018 – https://legislative.gov.in/sites/default/files/THE-CONSTITUTION-%28ONE-HUNDRED-AND-SECOND-AMENDMENT%29-ACT-2018.pdf
[viii] 105th Constitutional Amendment Act, 2021 – https://www.livelaw.in/pdf_upload/105th-constitutional-amendment-act-398950.pdf