| Issue 26 Vol II, October 31, 2006 | Archive |
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Reservation: Supreme Court opens a Pandoras
Box
Some in the political class acclaiming the judgment, as an effort of the Supreme to broker the diverse approach, a methodical compromise between social situations and even balancing the social currents. Mr. M.Karunanidhi Chief Minister of Tamil Nadu has given a call to the Chief Ministers of all the States to rise against the judgment, to apply on behalf of their respective states to the Supreme Court to become party to another case pending before a 9 member Constitution Bench examining the scope of Art. 31B in respect of Tamil Nadu State enactment placed in 9th Schedule of the Constitution relating to reservation. The present case M.Nagarath Vs Union of India arises out of challenge to the constitutional validity of 77th/1995, 81st/2000, 82nd (2000) and 85th/2001 amendment to the Constitution made during a short period of 6 years 1995 to 2001, to nullify the effect of one or the other judgement of Supreme Court on the same issue, perpetuating the reservation, its extent mode and modalities. The general category claims that Art. 16 is integral to equality, and is to be read in conjunction with Art. 14, Art, 309, 311, 315,316 and 318 to 323 relating to public employment, providing certain rights and protection to office holders. The scheme of the constitution recognises imperatives of efficiency in administration. The power to amend Constitution is limited power, which has become unlimited, and is violative of basic features of the Constitution. The amendments in question have, as per their argument failed to balance the fundamental rights, vis-vis directive principles. The Constitution of India provided in Art. 16, equality of opportunity in matters of public employment, with a rider placed in Clause 4 that "nothing shall prevent the State Government from making any provision for the reservation of appointments of posts......" Indira Sahni's case that the benefit of reservation shall be confined to initial appointment and not to promotions nullified by 77th amendment in the year 1995 and its other aspects regarding relaxation in qualifying marks by amending Art. 335 nullified by 82nd amendment in the year 2000 on the heals of the 81st amendment of the same year 2000 nullifying the effect in R.K.Sabharwal's case that carry forward vacancies cannot be filled exceeding 50% of the posts and followed by 85th amendment 2001 to nullify Ajit Singh Janjua's case regarding consequential seniority and benefit in promotion. The spate of amendments led to a rather sharpened controversy between the rival claimant categories leading to number of judicial proceedings including the case in hand. The Constitution Bench after examining the standards of judicial review, in the light of catena of other Supreme Court judgments came to the conclusion that the theory of basic structure is based on the principle that charge in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Equality is essence of democracy and basic feature of the Constitution. However there is a difference in formal equality and egalitarian equality. Once it is held that fundamental rights could be abridged but not destroyed, and once it is further held that several features of the Constitution cannot be destroyed, the concept of express limitation of the amending power looses it significance. Elaborating the concept of reservation the Supreme Court judgment says: "Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action. Our Constitution has, however, incorporated the word 'reservation' in Article 16(4) which word is not there in Article 15(4). Therefore, the word 'reservation' as a subject of Article 16(4) is different from the word 'reservation' as a general concept. Applying the above test, we have to consider the word 'reservation' in the context of Article 16(4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen." Equity, justice and merit are independent variable concepts. Similarly equality of opportunity has two different and distinct concepts. There is conceptual distinction between a non-discriminating principle and affirmative action under which State is obliged to provide level-playing field to the oppressed classes. It is the equality in fact that has to be provided and has to be looked into at ground reality. Balancing comes in where the extent of reservation is in question. If extent of reservation goes beyond cut off point then it results in reverse discrimination. Therefore, a numerical benchmark is the surest immunity against charges of discrimination. Upholding all the four amendments the Supreme Court lays down that the amendments are only enabling provisions because the parliament while enacting a law does not provide content to the "right". The content is provided by the judgments. The Supreme Court has the power to set aside a law if it violates the parameters contained in Art. 16(4) and Art. 335. Applying the "width test" there is no obliteration of any of the constitutional limits and applying "identity test" there is no alteration in existing equality code. There is no violation of the basic structure. On the basis of doctrine of guided power, allowing relaxation in qualification marks, keeping in view that efficiency is a 'variable factor accommodating it with other two factors "equity" and "justice"..., each appropriate Govt. will now have to introduce the time cap depending upon the fact situation in respect of the unfilled vacancies, so that the posts do not continue to remain vacant for years together which would be detrimental to administration. Further more, the constitutional amendments being curative in nature to continue benefits to remedy the past historical discriminations against a social class the benefit of reservation in initial appointment or in promotion with consequential benefits in not bad. The idea of excluding the creamy layer in Indira Sahni's case continues to bind as the concept of affirmative action is to work in favour of disadvantaged sections and not the privileged class among those. Even if the State has compelling reasons, the State shall have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely because the basis of distribution of benefits is the area of conflict between rights, needs and means. The grievance against the judgement is that there has always been dearth of suitable candidates even after relaxation of qualifying marks. The posts remain vacant. The centre has identified 26302 backlog vacancies indirect recruitment quota, and 30,534 in promotion quota as on May 1,2005. There is limited section among scheduled castes and scheduled tribes who is able to provide education to their children and compete. If that section is excluded on the pretext of creamy layer, the availability of suitable candidates will decrease drastically leaving a wide gap of unfilled seats, to be aggravated by the 2nd condition of "time cap" not to tag the unfilled posts with unfilled vacancies, there by leaving the unfilled seats as a gift offered in a plate to the general category. It is negation of the concept of the equality in fact. Interestingly judgment is being opposed by persons falling largely within the purview of creamy layer and has not been welcomed by any disadvantaged quarter of SCs or STs to whom the benefit of reservation will flow in the absence of creamy layer. [jogindersingh_toor@yahoo.com Mobile No.98151-33530 ] |
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THE
judgement of a five member Constitution Bench of the Supreme Court of India
on the question of reservation has evoked varied reactions. the polity
stands divided as does public opinion worse much of on caste lines. media toohas taken a partisan line, going by its caste composition and lack of
concerns for the welfare of the weak, it was not expected otherwise The
Dalits on the one hand condemn it as revival of Manuvad, a step in
retrograde, a measure to destroy the rights granted to the weakest section
in public services. many in the general category people describe it a
rational judgment and partly restoration of "equality in fact."