Tuesday, 19 July 2022

Reservation

                                         Reservation

On research, we find that Article 15 Clause (3), (4) and (5) itself stands as an exception to Article 15 Clause (1) and (2). Article 15 Clause (3), (4)and (5) states that the legislature is free to formulate special provisions:

  • For women and children,

  • For the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes,

  • Make provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.

Reservation In Medical Colleges

The thought of not allowing reservations in certain sensitive areas of practice would cause the sector to be monopolized by the privileged classes. Reasoning doesn’t stand on the factor of skills, it stands upon the factor of circumstances.

   In Ajay Kumar v. State of Bihar, the issue was raised regarding the permissibility of providing reservation under Article 15(4) in postgraduate medical courses. The contentions raised by the appellant were that Article 15(4) neither speaks nor permits reservation in educational institutions. While certain preferences and concessions can be given, reservation of seats is beyond the limits of clause (4) of Article 15 of the constitution of India. The appeal was rejected by the court as special provisions also include reservation provisions and not just preferences and concessions.

On the Basis of Domicile

After we comprehend the above provisions, the concept of reservation might seem fairer but reservation on the basis of domicile still remains as a pricking concept. What allows the state to formulate laws that differentiate individuals on the basis of domicile and what needful purpose does this kind of reservation serve?

As we find out that in India the preferential policy is of two types: 

  • The first to impart special benefits to the socially and educationally backward classes, scheduled classes and scheduled tribes.

  • The second to provide special benefits to the local ethical groups of the state against the migrant from the other states.

 

  This provision does not count as discrimination under the purview of. Article 15 defines “place of birth” as a ground of discrimination but reservation based on domicile generally comes under “place of residence” which is outside the bounds of “place of birth”. The place of birth and place of residence can be different for a single individual.

Special provision for Women and Children 

Once we know that reservation arises due to the presence of clause (3), (4) and(5). Let us now try to examine the clauses one by one. Clause (3) of Article 15 of the Indian constitution speaks about special provisions for women and children in order to protect them from the clutches of formal equality.

    Thought of this legislation to be carte blanche (complete freedom to act as one wishes) to impose differential benefits and ostensibly to the advantage of women at the cost of burdening men may ponder in your mind. But it is justified as it compensates for early injustice met by women and children at the hands of a male-dominated society. Right to free and compulsory education for children under the age of 14 years, section 56 of CPC, the Maternity Benefit (Amendment) Act 2017, etc.

In the case of Rajesh Kumar Gupta v. State of Uttar Pradesh, AIR 2005 SC 2540, U.P. government made provision providing reservation BTC training programme as follows:

  • 50% of the candidates to be selected shall be from Science stream,

  • 50% from the Arts stream,

  • further 50% would be female candidates,

  • And the other 50% would be male candidates.

 

The contentions raised were that the reservation format formulated was arbitrary and violative of Articles 15. The court held that the reservation format introduced was not warranted by the provisions of the Indian constitution, being over and above the constitutional reservations in favour of backward classes.

Reservation within Reservation

The concept of reservation within the reservation is a condition where reservation is provided to a particular class which is already under a reservation category. For example, A man is belonging to a particular community of Schedule castes is entitled to reservation for SCs but what if the community that he dwells from is more underprivileged as compared to the other communities of the SCs category.

      Is it justified to make them stand at par with others? Thus the concept of reservation within reservation emerged to uplift those underprivileged communities of the reserved categories. Current examples of such reservations are Maratha reservation in Maharashtra who already fall under the OBC reservation in Maharashtra.

Special Provision for the advancement of Backward class: Article 15(4)

Coming onto the next clause, i.e. Clause (4) of Article 15 of the Indian constitution. It allows the state to enact laws and provisions relating to the advancement of socially and educationally backward classes and the scheduled castes and scheduled tribes.

Socially and educationally backward classes

The phrase “socially and educationally backward classes” under Article 15(4) refers to underprivileged classes of people who have faced discrimination and prejudice from the privileged class. This category includes the class of people who belong to backward classes in society but are not covered under SCs or STs. OBCs have been included under this phrase of socially and educationally backward classes as a category for reservation.

The limit of reservation

The Supreme Court of India has put up a ceiling limit to the total percentage of reservations that can be provided by the government, It will deprive others of their right to equality. Supreme Court also provided for the guidelines to exceed the limit of reservation under extraordinary situations.

Reservation more than fifty per cent 

There is an upper limit of 50% on the total reservation, but as it was allowed to exceed under extraordinary circumstances. There are 4 states which have breached that limit of 50%:

  • Tamil Nadu has 69% reservation with 50% reservation for OBCs;

  • Maharashtra has 52%;

  • Telangana has 62%;

  • Haryana has 67%;

It is done under the extraordinary need for upliftment of certain backward classes.


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