ARTICLE 15 Roots of Reservation - Group 1 Sec B

GROUP 1

Section B

ARTICLE 15

Roots of Reservation

Under article 15(5) and 16(4) of the Indian constitution, reservation which is an affirmative action in encompassed. In AK Thakur vs union of India it was appealed that this case was violating the fabric of Indian constitution in terms of equality. The 93^rd Amendment Act (2005) and Central Educational Institutions (Reservation in Admission) Act, 2006 were under challenge. CEI Act, enacted by Parliament under Article 15(5), sought to enable greater access to higher education by providing for 27 per cent reservation for “Other Backward Classes” to central government controlled educational institutions and had no effect on privately managed education institutions. The  issue was whether caste is the sole basis for discrimination of social and economic backwardness or not?

Bound by the judgment of nine judge bench in Indra Sawhney, the court held that  caste could not be the sole determinant of backwardness, although it could be used as a starting point for determining backwardness. In light of this binding precedent, the Court had no option but to unanimously hold that caste could not be the sole determinant of backwardness.

However, it is rare that ideal principles are practiced in reality. Due to drive of ‘timocrcy’ and vote bank politics the political parties exploit the scope of determining which sect is to be classified as backward!

JAAT AGITATION

Politics of Reservation

It was 10 days of mayhem, looting and arson that set new benchmark for violence in the country. Giving us a chilling insight as to what happens when mob mentality takes the centre stage. For those living in Haryana seeing their cities burn to the ground in front of their eyes was horrifying and scary. It is like being in one of those situations when the people who you thought were just your next door neighbours will give up all tenets of a civilized society and become neighbours from hell.

Jats - though a ‘peaceful’ farming community which probably owns three-fourths of agricultural land in Haryana and is regarded as being synonymous with the 'zamindar' just as much as the Bania with the trader" - have been in the lime light due to their active political involvement and unpalatable demands. Undeniably have they been sine qua non to state party politics and have held leadership of significantly dominant political parties, primarily in rural provinces of Haryana, Punjab and Western UP. Despite being economically sound Jats have unreasonably pressed to be included in the central list for Other Backward Casts (OBC). The genesis of the demand can be traced back to  the Mandal commission report of 1991. When their demands were denied by National Commission on Backward classes (NCBC). In March 2008 ‘All India Jat Mahasabha’  (AIIM i.e., the body spearheading the agitation led by Hawa Singh Sangwan), raised demand for quota at the convention in Jind.

 Time Line 

 2008 -All India Jat Mahasabha raises demand for quata at a convention in Jind.

2011 - Haryana Government gives special backward status to Jats with 10% quota to five castes, Jats, Jat Sikhs, Rors, Tyagis and Bishnois.

Ram Singh and Ors. V. Union of India. Where in  Petitioner Shakti Singh from the Jind district claimed that the Manohar Lal Khattar government had acted under pressure from a particular caste, and the decision to introduce the Bill was “arbitrary and mala fide”.  Thereby Punjab and Haryana High Court stayed the order of the government. Settling at the Apex court, Justices Ranjan Gogoi and Rohinton Nariman held that  “Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness.” Thereby on March 17^th 2015 the Supreme Court sets aside the notification of the government. 

2014 - UPA government grants OBC status to Jaats. Supreme court sets aside the notification that granted OBC status to Jaats. 

2016 - The Haryana Assembly on March 29 passed the Haryana Backward Classes(Reservation in Services and Admission in Education Institutions)

Punjab and Haryana High Court stays reservation for Jats and members of five other provided by the Haryana government under a newly carved Backward Classes C category. 

The Act was challenged by Murari Lal Gupta of Bhiwani, who was seeking direction to quash block 'C' of the act, which provides reservation to the Jat community under a newly carved Backward Classes (C) category. The petitioner submitted that reservation for the Jat community has been provided under the new act on the basis of the Justice KC Gupta commission report, which the Supreme Court has already quashed.

the Punjab and Haryana High Court stays reservation for Jats and members of five other provided by the Haryana government under a newly carved Backward Classes (C) category.

CONSTITUTIONAL STATUS TO BACKWARD CLASSES COMMISSION?

The Lok Sabha has passed a constitutional amendment which introduces a National Commission for Socially and Educationally Backward Classes in the Constitution, despite opposition parties claiming certain clauses affected the federal structure of the country.

The National Commission for Backward Classes Bill 2017 to repeal the 1993 law was also passed. 

This is the first step towards making the backward classes commission a constitutional body. 

On 5 April ‘17, the BJP- led govt introduced a constitutional amendment in Lok Sabha for bringing a new National Commission for Socially and Educationally Backward Classes (NCSEBC) under its purview.

The constitutional amendment will still need to be passed by the Rajya Sabha with two-thirds majority and receive ratifications from more than 50% state governments.

The amendment envisages a five-member panel with several duties, including investigating and monitoring matters regarding safeguards provided for the socially and educationally backward classes, inquiring into specific complaints regarding deprivation of rights and safeguards, advising on their socio-economic development, and submitting reports on the working of the safeguards. 

The constitutional amendment also empowers the President to specify communities which would fall under backward class for states and union territories, in consultation with the concerned governor.

POINTS TO PONDER

After the case of Shah Bano, the Rajeev Gandhi government passed an amendment to appease the Muslim men. Is there any similar link of political connection in the cabinet’s decision to include Jats within reservation in this case?

There is a difference in these two cases with respect to field of law – the former deals with Family law whereas the latter deals with an issue of Constitutional law. However, there does seem to be similarity in the political aspect i.e., both these legislations seems to be for the sole purpose of appeasing vote banks – Muslims in the former and Jaats in the latter.

SUB CATEGORISATION OF OBCs

President Ram Nath Kovind has appointed five-member commission to examine sub-categorisation of Other Backward Classes (OBCs). It will be headed by retired Chief Justice of Delhi High Court G. Rohini.

Besides, Dr J K Bajaj, Director, Anthropological Survey of India, Registrar General and Census Commissioner and Joint Secretary from Ministry of Social Justice will be ex-officio members of commission.

Key Facts-The commission has been established under Article 340 of Constitution under which Mandal commission had recommended 27% reservation for socially and educationally backward classes, was appointed.

Sub-categorisation of OBCs aims to ensure more equitable distribution of reservations in government jobs and educational institutions so that dominant groups among OBCs do not corner all benefits. The exercise will involve sub-categorisation of 5,000 castes in central OBC list.

Commission’s Terms of reference-The commission will examine extent of inequitable distribution of benefits of reservation among castes included in broad category of OBCs, especially with reference to OBCs included in the Central list.

It will also take up exercise of identifying respective castes/sub-castes/communities synonyms in Central List of OBCs and classify them into their respective sub-categories. It will work out mechanism, norms, criteria and parameters, in scientific approach, for sub-categorization within such OBCs.

ncluded in the central list for Other Backward Casts (OBC). The genesis of the demand can be traced back to  the Mandal commission report of 1991. When their demands were denied by National Commission on Backward classes (NCBC). In March 2008 ‘All India Jat Mahasabha’  (AIIM i.e., the body spearheading the agitation led by Hawa Singh Sangwan), raised demand for quota at the convention in Jind.