Kind of Reservation:- (Mandal case, M.P.Jain.)
There are two kind of reservation
- Vertical Reservation
- Horizontal Reservation.
In Mandal case the Court has divided the total reservation of 50% into Vertical and horizontal reservation. Reservations in favour of OBC,SC, and ST under Article 16(4) may be called Vertical Reservation whereas reservation made in favour physically challenged under Article 16(4) can be called horizontal reservation. Horizontal reservation cut across the vertical reservations what is called interlocking reservation.
LEADING JUDGEMENT, AMENDMENT AND COMMISSION ON RESERVATION:-
State of Madras vs. Champacam Dorairajan , 1951
- Balaji vs. State of Mysore, 1963
- Devasan vs. Union of India, 1964.
- Indra Sawhney vs. Union of India, 1992
- Ashok Kumar Thakur vs. State of Bihar, 1995.
- Dr. Preeti Sagar Srivastava vs. State of Madhya Pradesh, 1999.
- (7) M. Nagraj vs. Union of India, 2007.
- ⤀ĀᜀĀ Ashok Kumar Thakur vs. Union of India, 2008
- (9)Society for Un-Aided Private School of Rajasthan vs. 2012
- Uttar Pradesh Power Corporation vs. Rajesh Kumar, 2012.
- Pramati Educational and Cultural Trust vs. Union of India.2014
- Deepa vs. Union of India, 2017.
1st Amendment- Article 15(4) and Ninth Schedule.
77thAmendment, Article 16(4A),
85th Constitutional Amendment Article. 16(4A)-Consequential seniority.
(5)73rd ,1992, reservation in rural local body, Article 243-D.
(6)74th,1992,Reservation in urban local body, Article 243-T
93rd Amendment,2005, Article 15(4)
(8) 82nd Amendment, 2000, Article 335, Provided that, Relaxation in Marks( in consequences of S. Vinod Kumar vs. Union of India,1996).
(1)Kaka Kalekar Committee, Article 340. (1955).
(2)B.P. Mandal Commission, Article 340 (1980).
(3) Justice Ram Nandan Committee, 1993.
Carry Forward Rule, Catch Up Rule, Kind of Reservations – Vertical reservation (Article 16(4) (SC,ST,OBC). Horizontal reservation (Article 16(1) (Differently Abled and women).
Reservation is a methods by which special opportunity is given to deprived or suppressed class so that they can contribute in development of nation. By this methods any nation wants to utilise resources and talents of all human beings.
By using this methods, USA is most powerful country. In USA , black people were given special opportunity and USA have to face CIVIL WAR(12 April 1861-09May1865) because white people were not ready to accept participation of black people.
Philosophy of Reservations is based on the principal that land and wealth of nation is not only of few people. Nation and government are for all people who are residing in certain territory.
In our country, in modern era , first of all Baba Saheb Bhim Rao Ambedkar realized and demanded reservation for suppressed class who were being considered as a animal and they were not allowed for sharing well, road ,shop , restaurant etc.
So by Poona pact, 24 Sep.1932, (Agreement between Gandhiji and Baba Saheb) reservation was given to most suppressed class people of our country. Adhering to Article 340 of the Constitution of India, the First Backward Classes Commission was set up by a presidential order on 29 January 1953 under the chairmanship of Kaka Kalelkar.
It is also known as the First Backward Classes Commission, 1955 or the Kaka Kalelkar Commission. In 1979, during the regime of Hon’ble P.M. Mr. Morarji Desai , second OBC Commission was constituted whose Chairperson was Bindeshwari Prasad Mandal (B. P. Mandal – Ex. Chief Minister and Ex. M.P.) and another 5 Members.
This Commission made base 1931 Census to find out how many Caste are OBC category. Because in this census Caste was mentioned. In latter census, there was no Caste counting. Article 15(4) &16(4) talks about socially and educationally backwards class.
So by making Caste, they find out that more than 50% people are backwards class. So this Commission made recommendations 27% reservations for OBC.
Question arises, why only 27% reservation, why not 50% reservation? To understand this question, we have to go in back and observe two cases and First Amendment.
State of Madras vs. Champacam Dirairajan, DOJ-09April, 1951:- This is the first case in
which reservation policy of Government was struck down. So then Law Minister, Dr. BSBR Ambedkar moved for First Constitutional Amendment (1951) whereby Articles 15(4) and Ninth Schedule were inserted. Thereby State became authorise to make reservations for advancement of ST, SC and OBC.
By First Amendment, two questions arised-
(1) Who are socially and educationally backward classes?
(2) What would be limit of reservation?
To find out two answer, we have to observe Balaji case.
Balaji vs. State of Mysore, 1963. In this case Govt.provided 68% reservations. By Notification, OBC was divided in two parts (I) Backward Classes (ii) More Backwards Classes. Supreme Court held-
(I) Reservation must not exceed 50% (Indira Sahni Case1992 -Rule – Not exceed 50% but in exceptional cases it may exceed).
(ii) Classification of OBC is not justfied. (Indira Sahni case 1992- such Classification is valid.)
So, Mandal Commission requested only for 27 % because 22.5% resservation had already given to SC and ST According to proportionate to their population.
Mandal Commission (1979-1980) – Mandal Commission submitted its Report in 1980. It was not implemented for 10 years. On 06 August1990 then Hon’ble Prime Minister Mr. Wishwanath Pratap Singh (02Dec.1989-10Nov.1990, Janta Dal) popularly known Raja Saheb and OBC Crusader decided in meeting of Council of Ministers to implement Report of Mandal Commission.
On 07 August 1990, he announced in Lok Sabha to give 27% reservation to OBC in Government employment. It created turmoil in whole country. Conflict arised between have and have not. In 1990 cases were filed in SC. On 16 November, 1992, Supreme delivered Judgement in Indra Sawhney and other Vs. UOI.
Indra Sawhney and other vs. Union of India DOJ, 16 Nov 1992- Supreme Court propounded following guidelines-
Classification between Backward and More Backwards is constitutional ( Balaji case overruled.)
Creamy Layer must be excluded. It is applicable only for OBC and not for SC & ST.
Reservation should not exceed 50% except in exceptional circumstances for example in extraordinary situations prevailing in a far flung States(e.g. Nagaland Tripura etc.
Reservation can be made by executive order. Enactment of Act by Parliament is not necessary. Controversial Point-
Caste was approved as a criteria to decide Backwardness. The Court struck down economic criteria because it has not been mentioned in Articles 15(4) & 16(4).
No reservation in PROMOTION. (This was nullified by enacting 77th Constitutional Amendment Act, 1995.By this Amendment Article 16(4A) was inserted and reservation in promotion was provided for SC & and ST but not for OBC.
Carry Forward Rule- In this case SC overruled Devasasan vs. Union of India (29August 1963) and held that the Carry Forward Rule is valid provided it should not exceed 50%reservation.
To nullify this ratio of the Court, 81st Constitution Amendment Act, 2000 was passed, whereby Article 16(4B) was inserted. Now in case of Carry Forward, 50%reservation may exceed.
Supreme Court held that in certain areas reservation is not permissible, for example :-
Defence services including all technical posts therein but excluding civil post.
All technical posts in establishments engaged in research and development including those connected with atomic energy and space and defence equipment.
Teaching posts of Professors and above if any.
Posts in super-specialties’ in medicine, engineering and another scientific and technical posts.
Posts of pilot and co- pilots in Indian Airlines and Air India.
According to directions given under Mandal case, Justice Ram Nandan Committee was constituted to identify Creamy Layer of OBC. The Committee submitted it’s Report in 1993.
In Ashok Kumar Thakur vs. State of Bihar, 1995, Supreme Court struck down unrealistically high levels of income to decide Creamy Layer.
Dr. Preeti Sagar Srivastava vs. State of Madhya Pradesh, 1999- SC held that merit, not quota test for admission in super speciality courses in medical and engineering’s colleges.
M. Nagraj vs. Union of India, 2007, In this case Supreme Court held that Articles 16 (4A) & 16 (4B) is constitional. These Articles do not alter the basic structure of Article 16(4). Supreme Court said State can make a reservation but three conditions must be fulfilled namely-
There must be Backward Class (Article 16(4), &
There must be Inadequacy of representation in service of state Article 16(4).
(3) There should not be any effect upon the efficiency of administration (Article 335). 93rd Constitution Amendment Act,2005
This Amendment was initiated by then Hon’ble Education Minister Mr. Arjun Singh . By this Amendment Article 15(5) was added whereby 27% reservation was given in educational institution in favour of SC ,ST, and OBC. This Amendment was challenged.
In Case of Ashok Kumar Thakur vs. Union of India, 2008, SC held this Amendment as Constitutional.
The Society for Un-Aided Private School of Rajasthan vs. Union of India, 2012. SC held that Right of Children to Free and Compulsory Education Act 2009 is CONSTITUTIONAL which provides 25% reservations in primary school.
Reservations are given mainly three area (1) Public Representation i.e. in Parliament, Legislative assembly and local body (2) Employment (3) Education.
It is given to following groups namely-
(1) ST, (2) SC, (3) OBC, (4) Women, (5) Differently Abled (6) Ex-employee (7) Economically Poor persons.
SC, ST, OBC and women can qualify in general category subject to some restrictions.
Deepa E. V. vs. Union of India and Other, DOJ 06 April, 2017. Hon’ble JJ, R. Banumat and A M. Khanwilkar Regarding this Judgement, There is a lot of rumour. Rumour is that OBC, SC and ST candidate can’t qualify in general category.
This rumour is not true.OBC SC ST can qualify in general category provided that he/ she has not taken special benefit of reserved category for example- age relaxation or more attempt etc.