Provisions for Reservation under Constitution of India

Provisions for Reservation under Constitution of India

Introduction

India is a vast country having an approx population of 130 crores with different cultural and religious backgrounds. It becomes important to ensure the interests of all in a country. And to safeguard the rights of the socially and educationally backward classes, to uplift the downtrodden and crushed sections of the society into the national mainstream, the provision of reservation was enacted in the Constitution of India. On one hand Indian Constitution declares everyone equal before law and on other hand it allows the government to make special laws and provisions for socially and educationally backward classes making it protective discrimination.

Reservation basically is the affirmative action taken by the Government for giving representation to the disadvantaged or people who faced discrimination due to the caste system prevalent in India.

Historical Background

Originally conceived the idea of caste based reservation was conceived by Jyotirao Phule and William Hunter in 1882 and a part of it was implemented by Chhatrapati Shahuji, Maharaja of Kolhapur in 1902. But originally the reservation system was introduced by Lord Chelmsford and Edwin Montagu in the Government of India Act, 1919.

The reservation system that exists today was introduced by Ramsay MacDonald in 1932. After the failure of 2^nd Round Table Conference he presented “COMMUNAL AWARD” which provided separate representation for the Forward Caste, Scheduled Caste, Muslims, Buddhists, Sikhs, Indian Christians, Anglo-Indians and Europeans. Gandhi criticized the award and declared an open fast until death as he feared that having a separate electorate for Depressed Classes would disintegrate hindu society. An agreement was made on 24^th September 1932 at Yerwada Central Jail, Poona between Dr. Ambedkar and Gandhi and they agreed that 148 seats would be reserved for the depressed classes in Legislature, known as Poona Pact.

After Independence, reservations were provided only to Scheduled Castes (SCs) and Scheduled Tribes (STs). But reservation was provided to Other Backward Classes (OBCs) in 1992 after the implementation of Mandal Commission report.

Various enactments, laws, provisions and initiatives had been made by the government for uplifting the downtrodden and the backward people by reserving seats for them in educational institutions, jobs, and various other fields. The Constitution of India also has various provisions for reservation for such people. And, in this article, we would be discussing about those provisions for reservation under Constitution of India.

Provisions for reservation under Constitution of India

1. Special provisions for women

Clause (3) of Article 15 provides: “Nothing in this article shall prevent the State from making any special provision for women and children.”

This clause is an exception to the rule against discrimination embodied in clause (1) as well as clause (2). While both these clauses prohibit discrimination on the ground of sex, clause (3) enables the state to make special provisions and rights for the women and children. Its goal is to strengthen and improve the status of women.

The Constitution (73rd Amendment) Act, 1992 added Article 243D reserving seats for women in panchayats and the Constitution (74th Amendment) Act, 1992 added Article 243T to the Constitution reserving seats of  women in the constitution of municipalities. Under Article 243D and Article 243T, One-third of the total seats in both panchayats and municipalities were reserved for women. In Government of A.P vs. P.B. Vijayakumar, the Supreme Court observed: “The insertion of Clause (3) of Article 15 in relation to women is recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Clause (3) is placed in Article 15. Its object is to strengthen and improve the status of women.”

The State may make a provision under Article 15(3) in form of either affirmative action or reservation. Therefore, making special provisions for women in employment, education or posts is an integral part of Article 15(3).

2. Special provisions for Backward classes

Clause (4) of Article 15 provides: “Nothing in this article or in clause (2) or Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

This clause was added by the Constitution (First Amendment) Act, 1951, as a sequel to the decision of the seven-judge bench of Supreme Court in the State of Madras vs. Champakam Dorairajan. In this case, the Madras Government issued a communal Government Order, providing reservation of seats in the State Medical and Engineering Colleges for different communities in proportion of students of each community. And the seats were reserved on basis of religion, race, and caste. The Order was challenged as violation of Article 15(1) since it discriminated on basis of religion, race and caste. The Government contended that the Order was issued in order to promote the Directive Principle of State Policy enshrined in Article 46. The Supreme Court, however, held the Order void as violation of Article 15 (1). The Court explained that while fundamental rights were justiciable, the Directive Principles had been expressly declared non-justiciable and that it was their duty to enforce only justiciable provisions.

3. Special provisions for Scheduled Castes, Scheduled Tribes

Article 330, 332 & 334 of the Constitution contains special provisions relating to reservation for Scheduled Castes, Scheduled Tribes in the Lok Sabha and the Legislative Assemblies of the States and in services and posts under the state.

Seats for Scheduled Castes and Scheduled Tribes in the House of the people are reserved under Article 330(1). Clause (2) of Article 330 lay down that the number of seats reserved should be in same proportion to the total seats allotted to state or UT in the Lok Sabha as the population of SCs and STs in the concerned state and UT to the total population of the state. And, Clause (3) of the Article provides for reservation of STs in the autonomous districts of Assam.

Similarly, Article 332 provides for reservation of seats for Scheduled Castes and Scheduled Tribes in the assembly of each state. Article 332(3) mandates that the reservation of Scheduled Castes and Scheduled Tribes. In Anand Singh vs. Election Commission it was ruled that mandate of the Constitution is supreme and the Election Commission cannot go beyond the scope of the Constitution, while issuing notification of Constituencies of state.

Article 334 provided that the provisions for reservation shall have a ceasing effect after completion of 80 years. Initially the time period for reservation was only 10 years but with various amendments it kept on increasing, latest being the Constitution (104th Amendment) Act, 2019, making the period 80 years from 70 years. The objective of these Articles is to give preferential right to the members of Scheduled Castes and Scheduled Tribes by way of reservation and Article 330, Article 332 do not debar the Scheduled Castes and Scheduled Tribes from contesting elections on unreserved seats.

Article 243D added by the Constitution (73rd Amendment) Act, 1992 and Article 243T added by the Constitution (74th Amendment) Act, 1992 make provisions for reservation of seats for Scheduled Castes and Scheduled Tribes in the Panchayats and Municipalities respectively. Article 243D and 243T provides that the number of seats reserved would be in same proportion to the total number of seats filled by direct election as the population of the SCs and STs to the total population of that area.

4. Special provisions for Anglo-Indians

Article 331, 333 & 336 contains special provisions for Anglo-Indians. Article 331 provides that the President can nominate 2 members from the Anglo-Indian community if he has an opinion that representation of Anglo-Indians is not adequate in the House of People.

Similarly, Article 333 enables the Governor to nominate 1 member from the community to the Legislative Assembly of the State, if he thinks that Anglo-Indians are not adequately represented in the assembly.

Article 336 gave special rights and privileges to Anglo-Indians to posts in railways, customs, postal and telegraph services. Article 336 is now merely of academic importance because it cease to have effect on 25^th January, 1960.

Article 334 says that this reservation would exist only for 10 years after the commencement of the Constitution. But this reservation was extended various times through various amendments to the Constitution. The Anglo-Indian reserved seats in the Parliament and State Legislatures of India were abolished by the 104th Constitutional Amendment Act, 2019.

5. Special Provisions for Economically Weaker Section(EWS)

The Constitution (103rd Amendment) Act, 2019 added Clause (6) to the Article 15 and Clause (6) to the Article 16. Clause (6) of Article 15 enables that the State Government can make special provisions for Economically Weaker Section (EWS) and can reserve 10% of seats for EWS in educational institutions. And, Clause (6) of Article 16 enables Government for reserving 10% seats for EWS in posts and appointments of the state. Within few hours it was challenged by a NGO ‘Youth for Equality’. They argued that the basic structure of the Constitution does not permit reservation based on economic factors. They also argue that Supreme Court in previous cases of M.R. Balaji vs. State of Mysore and Indra Sawhney vs. Union of India held that total reservation should not exceed 50%. But the total reservation is raised to 59.5% after the 103rd Amendment. The DMK filed a motion in the Madras High Court challenging the Amendment, they argues that reservations should be based on one’s community and not their economic status. A bench headed by CJI Ranjan Gogoi declined to pass a stay on the Amendment, but agreed to hear the petitions challenging the Amendment. Vijay Rupani, CM of Gujarat announced that Gujarat would implement the 10% reservation policy from 14 January 2019, making Gujarat the first state to implement the law. SK Joshi, Chief Secretary Telangana said that the state would also implement the Amendment, but after making some changes.

Author: Vikramjit Singh,
Panjab University SSG Regional Centre, Hoshiarpur