Month: January 2019

Reservation Policy In India

Reservation Policy in India is a process of reserving certain percentage of seats (maximum 50%) for a certain class such as Scheduled Castes, Scheduled Tribes, Backward classes, etc. in Government educational institutions, government jobs, etc.

The reservation policy is an age old policy being practiced in India. Its origin has its roots scattered from the ancient times when the practice of ‘untouchability’, caste system and Varna system was dominant in the society. In ancient times, the Hindu society was divided on the basis of Varna, Jatis or classes and they were as follows in the descending order of their social hierarchy- the Brahmans, the Kshatriyas, the Vaisyas and the Shudras. There was another class of people or rather no class people known as “untouchables” or “avarna” that is who has no class. These untouchables were considered to be impure for the society and were excluded from the social system. They had to reside outside the village and had no social rights. In some parts of the country such as Southern India, if even their shadow was casted on the upper-class people then it was considered that the person has got impure. There were strict restrictions on them for social gatherings and social life and if they violated any social norm, they were severely punished and in some cases were even killed. The division of society on the norms of purity and impurity was a very cruel system, and it had adverse effects on the development and growth of these lower class people where the skill and labor of an individual were recognized merely on the ground of him being a member of a lower caste. The epics like Mahabharata also quote of many instances wherein a warrior like Karna was not allowed to showcase his talent merely on the ground of him being a Shudra. He was often referred to as ‘Shudra Putra’ and humiliated because of his caste. The then prevalent caste system was a major reason for the advent and advancement of the Reservation Policy in India. The idea of giving reservations to a certain class of people originated because of the prevalent atrocities being done on the certain class of people. To give them an equal opportunity, an equal status in society, to uplift them socially, to bring them at par with other sections of society and moreover to bring development in the lower strata of society, were the reasons for the adoption of Reservation Policy in India.

Reservation Policy in Pre- Independence Era

The legal origin of Reservation Policy in India began with lying down of the Government of India Act, 1919 which came during the turbulent period of World War I. During this period, the British were more focussed on Europe rather than on India yet they passed much important and significant legislation that aimed at the development of the Indian Territory. This Act of 1919 not only introduced several reforms for the Indian Governmental institutions but also addressed many issues of minorities including the formation of communal electorates. Though the system was criticized firmly by Montague-Chelmsford as a system that could be a hindrance to the self-development policy but because Muslims already had a communal electorate through the Minto- Morley reform of 1909 and, therefore, they found it unfeasible to take away the separate electorates of Muslims.

After the Act of 1919, the controversial Simon Commission came up in 1927 to scrutinize the Montague- Chelmsford reforms. After touring the entire Indian provinces, their representatives proposed for combining separate electorates and reserving seats for depressed classes and demand for the wider franchise was there as the economic, educational and social position of these depressed classes did not allow them to vote properly. To stamp and scrutinize the report of Simon Commission and the reforms proposed by them and how to incorporate them into new Constitution, a Round Table Conference was convened in London in 1931. There were many Indian delegates from various interests groups. The conference was chaired by Prime Minister Ramsay Macdonald. There were appeals for separate electorate from B.R Ambedkar but Mahatma Gandhi strongly opposed the appeal for separate electorate for depressed classes and because of this strong opposition from Mahatma Gandhi and Congress the issue of minority remained unresolved in the Conference.

After this the Communal Award and the Poona Pact of 1932 came into force wherein the Prime Minister Macdonald announced the communal award where the separate representations were to be provided to Muslims, Sikhs, Indian Christians, Anglo- Indians, Europeans and Dalits Depressed classes’ were assigned a number of seats that were to be filled by election from special constituencies in which voters belonging to the depressed classes could only vote

The award brought in criticism from Mahatma Gandhi but was strongly supported by Dr. BR Ambedkar and other minority groups. As a result, of the hunger strike by Mahatma Gandhi and widespread revolt against the award, the Poona Pact of 1932 came into being which brought in a single general electorate for each of the seats of British India and new Central Legislatures. The stamping of the provisions of Poona Pact, 1932 were done in The Government of India Act of 1935 where reservation of seats for depressed classes was allotted. This was the scenario before the independence of India.

Post- Independence Era 

Post- Independence the scenario changed and the reservation policy gained even more momentum than the pre-independence era. The Constituent assembly chaired by Dr. B.R Ambedkar framed the reservation policy and many Articles in the Indian Constitution were dedicated for the same.

Article 15(4) – Special Provision for Advancement of Backward Classes-

Article 15(4) is an exception to clauses 1 and 2 of Article 15, and it was added by the Constitution (1st Amendment) Act, 1951, as a result of the decision in State of Madras v. Champakam Dorairajan[1]. In this case, the Madras Government had reserved seats in State Medical and Engineering colleges for different communities in various proportions on the basis of religion, caste and race. The state defended the law on the ground that it was enacted with a view to promote the social justice for all the sections of the people as required by Article 46 of the Directive Principles of State Policy. The Supreme Court held the law void because it classified students on the basis of caste and religion irrespective of merit. To modify the effect of the decisions, Article 15 was amended by the Constitution (1stAmendment) Act, 1951. Under this clause, the state is empowered to make provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. After the amendment, it became possible for the state to put up a Harijan Colony in order to advance the interest of the backward classes.

Constitution (93rd amendment) Act, 2006: Provision for Reservation of Backward, SC and ST classes in private educational institutions (article 15(5))

The new clause 5 provides that nothing in Article 15 or in sub- clause (g) of Clause 1 of Article 19 shall prevent the state from making any special provisions, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30..

The above-mentioned amendment has been enacted to nullify the effect of three decisions of the Supreme Court in TM Pai Foundation v. State of Karnataka[2], Islamic Academy v. State of Karnataka[3] and P.A Inamdar v. State of Maharashtra[4].  In T.M Pai and P.A. Inamdar case, it had been held that the state cannot make reservations of seats in admissions in privately run educational institutions. In Islamic Academy case, it had been held that the state can fix quota for admissions to these educational institutions but it cannot fix fee, and also admission can be done on the basis of common admission test and on the basis of merit. This Amendment enables the state to make provisions for reservation for the above categories of classes in admission to private educational institutions. The Amendment, however, keeps the minority educational institutions out of its purview. Article 15 prohibits discrimination on the ground of religion. The evil effect of reservation is well known. The politicians who claim to take the country to the 21st century for which higher education is based on merit is essential, is taking a retroactive step in providing reservation to less meritorious students to private educational institutions. This appeasement policy of the government may get them some benefit in elections, but it would be harmful to the Nation.[5]

Reservation of posts in public employment on the basis of residence (Article 16(3))[6]

Article 16(3) is an exception to clause 2 of Article 16 which forbids discrimination on the ground of residence. However, there may be good reasons for reserving certain posts in State for residents only. This article empowers Parliament to regulate by law the extent to which it would be permissible for a state to depart from the above principle.

Reservation for backward classes in public employment (Article 16(4))[7]

Article 16(4) is the second exception to the general rule embodied in Articles 16(1) and (2). It empowers the state to make special provision for the reservation in appointments of posts in favor of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State.

Indra Sawhney V. Union of India [8]– The Mandal Case

The 9 Judge Constitution Bench of the Supreme Court by 6:3 majority held that the decision of the Union Government to reserve 27% Government jobs for backward classes provided socially advanced persons- Creamy Layer among them are eliminated, is constitutionally valid. The reservation of seats shall only confine to initial appointments and not to promotions, and the total reservations shall not exceed 50 percent. The court accordingly partially held the two impugned notifications (OM) dated August 13, 1990, and September 25, 1991, as valid and enforceable but subject to the conditions indicated in the decision that socially advanced persons- Creamy layer among Backward Classes are excluded. However, the court struck down the Congress Governments OM reserving 10% Government jobs for economically backward classes among higher classes.

After the landmark Mandal case, Article 16(4-A) (through 77th Amendment) and 16(4-B) (through 81st Amendment) were added. According to clause 4-A, nothing in this Article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes of posts in the service of state in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State, are not adequately represented in the services under the State.”

Clause 4-B seeks to end the 50% ceiling on the reservation for SCs/STs and BCs in backlog vacancies which could not be filled up in the previous years due to the non- availability of eligible candidates.

85th Amendment Act replaces the words “in matters of promotion to any class” in clause 4- A of Article 16 with words “in matters of promotion, with consequential seniority, to any class.”

Other Articles of Indian Constitution covering the Reservation Policy

Article 17 talks about the abolition of untouchability and declares its practice in any form to be an offense punishable under law.

The Social Security Charter of Directive Principles of State Policy under Article 39-Adirects the State to ensure equal justice and free legal aid to Economically Backward Classes and under Article 45 imposes a duty on the state to raise the standards of living and health of backward classes.

Articles 330-342 talk about the special provisions for the certain class of people such as Scheduled Castes, Scheduled Tribes, Anglo –Indians, Linguistic minorities and OBC.

Conclusion

The reservation policy in India was adopted with a reason to uplift certain castes who were subjugated to atrocities, social and economic backwardness due to the prevalent dominance of caste system in Hindu Society.

This reason has somewhere lost its essence in the modern era, and the castes that should be actually benefitted are not being benefitted, and the others are reaping the benefits of the reservation system that are actually not meant for it. Today, the reservation system has just become a tool for politicians to gain vote banks. The recent agitation from the Patels of Gujarat to include them in the category of OBC was shocking for the entire nation, as the people who were agitating to get reservations in the state of Gujarat were in no ways socially and economically backward.

In the State of Tamil Nadu, the reservation system proved to be a havoc for the society wherein the Brahmans had very cleverly churned themselves down in the league of the backward bandwagon and had gained enormously from the reservation system.

For these possible reasons, the Creamy Layer has been excluded from the list of Scheduled Castes, Scheduled Tribes and OBC after the landmark Mandal Case.

In one of the landmark decisions of Ashok Kumar Thakur v. Union of India, Justice Ravindran smelling the dangers from the present trend on the reservation had rightly opined that when more people aspire for backwardness instead of forwardness, the Country itself stagnates.

It is quite impossible to declare Reservation policy as good or bad as those benefitting from it would always support it and declare it to be good while those who are being at a loss because of the system would always curse it and declare it to be bad. But what matters the most is not that whether the reservation policy is good or bad instead what matters is the idea and the reason behind its adoption. If that reason is losing its essence, then, of course, the reservation policy would gradually turn out to be bad.

The political indulgence in the process of reservation has merely reduced from a noble idea to a strategy to increase the vote bank. Moreover, a lot of criticism has been made on the criteria of reservations. The socially and economically backward classes are not actually in practical and real sense socially and economically backward, the only stamp of being from a backward caste is enough to gain profits in the name of reservations.

The reservation policy is good till the point some deserving candidate is not missing upon his opportunity because of the prevalent reservation system. I find no reason for giving admissions to undeserving students over deserving students. If these classes of people have been denied opportunities in past, then the scenario is being repeated with the general class in the present. The undeserving should not reap the fruits of the labor of the deserving.

We also need to understand that when we talk about development then simultaneously we cannot talk about backwardness. If we would demand more and more backwardness, then it is obvious we cannot move forward, and we will not be able to move forward, our progress would ultimately get stagnant.

It is also important that the essence of the idea of the adoption of reservation policy should be maintained, and the actual backward classes who are in real and not fiction denied access to education, job opportunities etc be benefitted.

This reservation policy should not become a ladder to climb on the stairs of profit, money and other related interests for those who are just roaming with the stamp of being a backward class and are actually socially and economically much more stable than the general class.

“The urge to be one among the backward will gradually lead towards the stagnation in the development of the country.

[1] AIR 1951 SC 226

[2] AIR 2003 SC 355

[3] AIR 2003 SC 3724

[4] Air 2005 SC 3226

[5] The Constitutional Law of India by Dr. JN Pandey, Central Law Agency, page 132.

[6] THE CONSTITUTION OF INDIA BY JN PANDEY, PAGE 155.

[7] THE CONSTITUTION OF INDIA BY JN PANDEY, PAGE 155- 156

[8]  AIR 1993 SC 477

10 major judgments by Supreme Court in 2018

In his final week as chief justice, Dipak Misra has passed various judgments on important cases, ranging from the one on the constitutionality of Aadhaar to the case on the entry of women into the Ayyappa temple at Sabarimala.

Some of the judgments have been unanimously hailed.Others have been welcomed by some and criticised by others. Interestingly, those welcoming some judgements are the very people criticising some others. This is a clear indication that the court has not taken sides or played favourites.

Misra’s last working day will be 1 October as the court will not be functioning the following day on the occasion of Gandhi Jayanti.

Here are the top 10 judgements by Supreme Court

Decriminalisation of section 377

In a landmark judgment, the Supreme Court on 6 September 2018 decriminalised homosexuality.The five-judge SC bench’s decision to make gay sex legal has restored the LGBTIQ community members’ faith in the Indian judicial system. While many take a sigh of relief that “they would not be seen as a criminal”, Shashi Tharoor feels we all should “savour this victory”.

The Supreme Court decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary”.

Reservation in promotion for SC/ST government employees

The Supreme Court turned down an appeal to reconsider its own earlier order that had rejected the idea of reservations for Scheduled Castes (SCs) or Scheduled Tribes (STs) in government job promotions on September 26.

Validity of Aadhaar

The Supreme Court upheld the validity of Aadhaar on September 26, 2018 and struck down Section 57 of Aadhaar Act. It said, private companies cannot ask for Aadhaar. It won’t be mandatory for opening of bank accounts, mobile connections.

Ram Janmabhoomi-Babri Masjid

The Supreme Court turned down two pleas in the Ayodhya case on September 27, 2018. One that directly deals with the way the disputed land was split according to the 2010 Allahabad High Court ruling, and another that would have had a direct impact on the Supreme Court’s final verdict in the case.

Adultery

In a historic judgement, the Supreme Court quashed adultery as a criminal offence in India. The court underlined that Section 497 treats women as properties of their husbands and is hence manifestly discriminatory. It trashed the central government’s defence of Section 497 that it protects the sanctity of marriages.

Sabarimala verdict

The Supreme Court lifted centuries’ old prohibition of women between ages 10 and 50 from entering Sabarimala temple in Kerala on Friday. “The practice in Sabarimala temple violates the rights of Hindu women. It has to be in harmony with the Constitution” said Chief Justice of India Dipak Misra.

Bhima Koregaon arrest

In a setback for activists, the Supreme Court ordered an extension of the house arrest of activists for four more weeks on September 28, 2018.

Live streaming of court hearing

The Supreme Court on Wednesday decided to bring its courtroom proceedings under public glare by agreeing to live-streaming of court functioning, paving the way for people to watch the courtroom drama live as it unfolds on September 26, 2018.

Politicians with criminal antecedents

In its unanimous verdict, a five-judge bench led by Chief Justice Misra on Tuesday left it to Parliament to bar lawmakers facing trial for heinous and grievous offences from contesting elections by enacting a “strong law”, while it observed that the criminalisation of politics is a bitter manifest truth and a “termite” to the citadel of democracy.

Refusing to put a ban on candidates with criminal antecedents from entering the poll fray, the court said the law should also make it mandatory for political parties to revoke the membership of candidates facing serious criminal cases.

Triple Talaq

The Supreme Court on August 22, 2017 banned a controversial Islamic practice of instant divorce as arbitrary and unconstitutional, in a landmark verdict for gender justice that will stop Muslim men calling off a marriage on a whim.

The top court said Triple Talaq violates the fundamental rights of Muslim women as it irrevocably ends marriage without any chance of reconciliation.

Marriage of Hindu woman and Muslim man irregular, not valid; child born is legitimate: Supreme Court

The court held that the child born in an irregular marriage is legitimate just like in the case of a valid marriage and is entitled to inherit the property of the father.

 A marriage of a Hindu woman with a Muslim man is not a “regular or valid” but the child born out of such wedlock is legitimate, the Supreme Court on Tuesday held.

It also said that the legal effect of such an irregular marriage is that a wife is entitled to get dower but cannot inherit the husband’s property.

The court held that the child born in an irregular marriage is legitimate just like in the case of a valid marriage and is entitled to inherit the property of the father.

A bench of justices N V Ramana and M M Shantanagoudar upheld the order of the Kerala High Court by which it was ruled that the son of a couple – Mohammed Ilias and Valliamma (who was Hindu at the time of marriage) – was legitimate and was entitled for share in his father’s property according to law.

“We conclude that the marriage of a Muslim man with an idolater or fire­worshipper is neither a valid nor a void marriage, but is merely an irregular marriage. Any child born out of such wedlock is entitled to claim a share in his father’s property,” the bench said.

The top court while dismissing the appeal against the high court order said that since Hindus are idol worshippers, which includes worship of physical images or statues through offering of flowers and adornment, it is clear that the marriage of a Hindu woman with a Muslim man is merely an irregular one.

It was hearing a property dispute matter in which Shamsuddin, son of Ilias and Valliamma, claimed share in the ancestral property through inheritance after the death of his father.

It said “the legal effect of a irregular marriage is that in case of consummation, though the wife is entitled to get dower, she is not entitled to inherit the properties of the husband.

But the child born in that marriage is legitimate just like in the case of a valid marriage, and is entitled to inherit the property of the father.

” The court said that on other hand the effect of a void marriage is that it does not create any civil right or obligations between the parties and the children born out of such wedlock are illegitimate.

The bench said that under Muslim law, a marriage is not a sacrament but a civil contract and there are three types of marriage – valid, irregular and void.

The court said that high court relied on principles of Islamic law to conclude that such rules do not treat the marriage of a Muslim with a Hindu woman as void, and confers legitimacy upon children born out of such wedlock.

Referring to this law, the bench said that a marriage which is not valid may be either void or invalid.

“A void marriage is one which is unlawful in itself, the prohibition against such a marriage being perpetual and absolute. An invalid marriage is described as one which is not unlawful in itself, but unlawful for something else (like absence of witnesses),” the bench said.

Shamsuddin’s claim over property was opposed by his cousins who alleged that his mother was not the legally wedded wife of Ilias and she was a Hindu by religion at the time of marriage.

They claimed that she had not converted to Islam at the time of her marriage, and thus Shamshuddin being the son of Valliamma, is not entitled to any share in Ilias’s property.

The top court said that it was not disputed that Valliamma was the wife of Ilias and contrary to the claims, birth register records maintained by statutory authorities indicate that Shamshuddin was their son.

“On the contrary, he is the legitimate son of Mohammed Ilias, and consequently is entitled to inherit the shares claimed in the estate of his father,” it said.

It said that it was also not denied that Ilias and Valliamma were living together as husband and wife at Thiruvananthapuram.

“Under these circumstances, in our considered opinion, the trial court and the high court were justified in concluding, based on the preponderance of probabilities, that Valliamma was the legally wedded wife of Mohammed Ilias, and the plaintiff (Shamshuddin) was the child born out of the said wedlock,” it held.

The bench also upheld the finding of the high court that though Shamshuddin was born out of a ‘fasid’ (irregular) marriage, he cannot be termed as an illegitimate son of Ilias.