By Satya Prakash
Acceptance of verdicts delivered by the Supreme Court has been one of the vital strengths of the Indian democracy. Notwithstanding the violent agitation against VP Singh Government’s decision to give reservation to Other Backward Classes in public employment, the heat and dust generated by it settled almost immediately once the Supreme Court delivered its verdict in Indira Sawhney’s case, popularly known as Mandal case. Those opposed to OBC reservation in government jobs accepted it as a matter of fact.
But almost 27 years on, most of the legal issues settled by the November 16, 1992, verdict of a nine-judge Constitution Bench appear to have got unsettled by a series of legislative measures, executive decisions and judicial verdicts, the latest being the Bombay High Court's verdict upholding the reservation given to Marathas in breach of the 50 per cent ceiling imposed by the Supreme Court in Indira Sawhney case.
Apart from upholding the validity of the decision to give 27 per cent reservation to candidates belonging to Other Backward Classes, the Supreme Court had given its findings on many certain other contentious issues such as 50 per cent ceiling on quota, reservation in promotion, creamy layer and economic backwardness among others.
The top court had said quota shouldn't exceed 50 per cent, saying “Reservation being extreme form of protective measure or affirmative action it should be confined to minority of seats.”
It had declared reservation in promotion unconstitutional, saying it was constitutionally impermissible and said, “Creamy layer amongst backward class of citizens must be excluded by fixation of proper income, property or status criteria.”
Be it attempts to provide reservation to Jats in Haryana or Maratha reservation in Maharashtra or quota for Patidars in Gujarat or the law passed by the Rajasthan Assembly for five per cent quota in government jobs and educational institutes to Gujjars and four other communities — the sanctity of 50 per cent ceiling on quota fixed by the Supreme Court in the Mandal case has been seriously undermined.
Citing lack of Constitutional backing, the Mandal verdict had blocked the Narasimha Rao Government’s decision to give 10 per cent quota to Economically Backward Section. But the 103rd Constitutional Amendment and the Centre’s subsequent decision to give 10 per cent reservation to EWS candidates in public employment and educational institutions has taken the overall quota to 59.5 per cent. Petitions against its validity are already pending before the Supreme Court.
In Tamil Nadu, the reservation limit has been 69 per cent for decades and petitions challenging its validity have been pending in the Supreme Court for several years. In several other states quota exceeds 50 per cent and many of these state laws are already under challenge.
While declaring reservation in promotion “unconstitutional”, the Supreme Court in the Mandal case allowed it to continue only for five years. But a series of constitutional amendments extended it beyond that period.
In October 2006, in M Nagraj's case, the Supreme Court upheld the validity of these amendments but stipulated that in each case State will have to show existence of "compelling reasons", including "backwardness", "inadequacy of representation" and overall "administrative efficiency" before making provisions for reservation. It said if a state government wishes to make provisions for reservation to SC/STs in promotion, the state concerned has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class.
Citing the Supreme Court ruling in Nagraj's case, several high courts struck down decisions for reservation in promotions. In September last year, a five-judge Constitution Bench said the State need not collect quantifiable data on backwardness of SC/ST employees to give them benefit of reservation in promotion. Despite the 2018 verdict, there is no clarity on the issue.
Even on the creamy layer issue, there are petitions pending in the Supreme Court seeking introduction of the concept in SC and ST reservation. As of now there is confusion on many of the issues settled by the 1992 Mandal verdict. Legislative measures, executive decisions and judicial verdicts in the last 25 years have led to social unrest in many states. It's incumbent upon the Supreme Court to consider setting up a larger Constitution Bench to take a holistic view of issues relating to reservation and settle the legal questions once again.
Ceiling on quota being undermined
Be it attempts to provide reservation to Jats in Haryana or Maratha reservation in Maharashtra or quota for Patidars in Gujarat or the law passed by the Rajasthan Assembly for five per cent quota in government jobs and educational institutes to Gujjars and four other communities — the sanctity of 50 per cent ceiling on quota fixed by the Supreme Court in the Mandal case has been seriously undermined.
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