Reservations In Promotion Is Not A Fundamental Right: SC – Economics – Free PDF Download

CURRENT AFFAIR

• The Supreme Court has recently ruled that the states are not bound to provide reservation in appointments and promotions and that there is no fundamental right to reservation in promotions.

Reservation in India

• To correct the historical injustice faced by backward castes in the country.
• To provide a level playing field for backward section as they can not compete with those who have had the access of resources and means for centuries.
• To ensure adequate representation of backward classes in the services under the State.
• For advancement of backward classes.
• To ensure equality as basis of meritocracy i.e all people must be brought to the same level before judging them on the basis of merit.

Mandal Commission

• In exercise of the powers conferred by Article 340 of the Constitution, the President appointed a backward class commission in December 1978 under the chairmanship of B. P. Mandal.
• The commission was formed to determine the criteria for defining India’s “socially and educationally backward classes” and to recommend steps to be taken for the advancement of those classes.
• The Mandal Commission concluded that India’s population consisted of approximately 52 percent OBCs, therefore 27% government jobs should be reserved for them.
• It has generated an all-India other backward classes (OBC) list of 3,743 castes and a more underprivileged “depressed backward classes” list of 2,108 castes.

Related Constitutional Provisions about Reservation

• Article 16(4) empowers the state to make 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.
• By way of the 77th Amendment Act, a new clause (4A) was added to Article 16, empowering the state to make provisions for reservation in matters of promotion to Scheduled Caste/Scheduled Tribe employees if the state feels they are not adequately represented in services.

Key Points from the Ruling

• Article 16 (4) and 16 (4A) of the Constitution are in the nature of enabling provisions, vesting a discretion on the state government to consider providing reservation, if the circumstances so warrant.
• The state government cannot be directed to provide reservation for appointment in public posts. Similarly, the state is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions.
• Articles 16 (4) and 16 (4-A) of the Constitution did not confer individuals with a fundamental right to claim reservations in promotion.
• The Articles empower the State to make reservations in matters of appointment and promotion in favour of the Scheduled Castes and Scheduled Tribes only “if in the opinion of the State they are not adequately represented in the services of the State”.
• Thus, the State government has discretion “to consider providing reservations, if the circumstances so warrant”.
• However, if a State wishes to exercise its discretion and make reservation in promotions, it has to first collect quantifiable data showing inadequacy of representation of a class or community in public services.
• Subject to Judicial Review
• If the decision of the state government to provide SC/ST reservation in promotion to a particular public post is challenged, it would have to place the data and prove before the court that reservation was necessary and does not affect the efficiency of administration.

Constitutional Provisions Governing Reservation in India

• Part XVI deals with reservation of SC and ST in Central and State legislatures.
• Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST.
• The Constitution was amended by the Constitution (77th Amendment) Act, 1995 and a new clause (4A) was inserted in Article 16 to enable the government to provide reservation in promotion.
• Constitutional 81st Amendment Act, 2000 inserted Article 16 (4 B) which enables the state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year.
• Article 330 and 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively.
• Article 243D provides reservation of seats for SCs and STs in every Panchayat.
• Article 233T provides reservation of seats for SCs and STs in every Municipality.
• Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.

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