legal language chapter no.5 RESERVATIONS BLS LLB SEM II

CHAPTER NO. 05

RESERVATIONS

PREAMBLE

"WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India in to a SOVERIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC, and to secure to all its Citizens:

JUSTICE – Social economic and political:

LIBERITY of thought, expression, belief, faith & worship:

EQUALITY of status and of opportunity:

and to promote among them all.

FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation.

IN OUR CONSTITUTENT ASSEMBLY, this twenty-sixth day of November, 1949.do HERBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTIONS."

The preamble to the constitution declares that India is a sovereign, Socialist, Secular & Democratic Republic that secures to all its citizens. Justice- Social Economic & Political.

1.   RESERVATION FOR SCHEDULED CASTES/SCHEDULED TRIBES AND

OTHER BACKWARD CLASSES

            On attainment of independence, instruction was issued on 21.9.1947 providing for reservation for Schedule Castes in direct recruitment. After promulgation of the constitution, reservation for STs in direct recruitment was provided vide MHA resolution dated 13.9.1950. Reservation in case of promotion for SCs/STs was introduced in 1957. Reservation for OBCs was started in direct recruitment with effect from 8.9.1993. Persons belonging to creamy layer of OBCs, however, are excluded from the purview of reservation.

·         Art 16. Equality of opportunity in matters of public employment.- 

·         Article 16(4) –

Nothing shall prevent the state to make provision for reservation of appointment or past in favour of any backward class of citizen which in the opinion of state, is not adequately represented in the service under state.

·        Art 17. Abolition of Untouchability.-

"Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability rising out of "Untouchability" shall be an offence punishable in accordance with law.

·         Art 29. Protection of interests of minorities.-

·         Article 29(2) –

No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

·         Art 46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.-  

The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Case –

Mr. Baja v/s state of maysor

Air – 1960 Sc 649

·         RESERVATION IN DIRECT RECRUITMENT –

            Reservation for SCs, STs and OBCs in case of direct recruitment on all India bases by open competition is 15%, 7.5% and 27% respectively.

·         RESERVATION IN PROMOTION –

1)    Reservation in promotion by non-selection method is available to SCs and

the STs in all groups of posts at the rate of 15% and 7.5% respectively. In case of promotion by selection, SCs and STs get reservation up to the lowest rung of Group 'A' at the same rates. There is no reservation when promotions by selection are made from a Group 'A' post to another Group 'A' post. However, when promotions by selection are made from a Group 'A' posts to another Group 'A' post carrying an ultimate salary of Rs. 18,300/- or less, the

Scheduled Caste/Scheduled Tribe officers who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for

which the select list is to be drawn up, are included in that list provided they are not considered unfit for promotion.

2)    There is no reservation for OBCs in the matter of promotion.

·         RESERVATION IN PRIVATE SECTORS –

1)    The matter regarding reservation in private sector came up for

Examination before the DOPT in connection with a Private Member Bill. The

Attorney General of India was consulted in the matter who opined that Article

16(4) of the Constitution enable the State to provide reservation of

Appointments or posts in favour of any backward class of citizens in the services under the State and that reservation in Private Sector will not be permissible under Article 16 (4) of the Constitution and will be violative of the equality provision in the constitution.

2)    The Ministry of Social Justice & Empowerment is, however, exploring the

Possibilities of introducing reservation in private sector.

2.   RESERVATION FOR WOMAN –

·         Art 42. Provision for just and humane conditions of work and maternity relief.- 
The State shall make provision for securing just and humane conditions of work and for maternity relief.

·        Art 44. Uniform civil code for the citizens.- 
The State shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India.

·         SPECIAL PROVISIONS FOR WOMEN :

Article 15(3) has enabled the state to make special provisions under: -

i) Section: 354 Indian Penal Code (IPC) : Assaulting or using force to a woman with intent to outrage her modesty; imprisonment for 2 years or with fine or with both.

ii) Section 497 IPC : Which only punishes man in cases of Adultery & Exempts the women from punishment even though she may be equally guilty as an abettor. This provision is also applicable for children.

iii) Section 497 (1) Criminal Procedure Code: Making special treatment for women and children in matter of granting Bail.

iv) Section 494 IPC : Which makes Bigamy a punishable offence.

v) The Hindu Marriage Act of 1955 has made Bigamy punishable offence & Given greater strength to monogamy

vi) Reservation of seats in local body.

vii) The Hindu Succession Act, 1956 made for reaching changes in the law improved the position of women & treated women on par with men in case of property succession.

viii) Separate educational institutions exclusively for women.

ix) Reservation of a seats or places for women in public conveyances & places of public resort.

x) The Factories Act, 1948 provides separate facilities & treatment for women.

xi) Maternity Benefit Act,1961 provides free medical treatment & maternity leave for women.

xii) The State is competent under Article 15(3) 16(1) 16(2) & 16(4) of the constitution to give preference to women in Government Jobs where they are equally mentions but more suited than men. These constitutional provisions, no doubt ensures equality of opportunity to women. The purpose of Article 15(3) is to improve the status of women, to empower them in a manner that would bring about effective equality between men & women. The supreme court gave wider interpretation to the phrase “Special Provisions” under Article 15(3) to include with in ambits not only positive state acts like concessions, preferences, benefits, etc but also reservation of posts or appointment in public service in favour of women. Based on wider interpretation of the Supreme Court Rule 22-A(2) of Andra Pradesh State & subordinate service rules provided to the extent of 30% of the posts to women. Therefore, Based on the above instances of Article 15(3) has been described as ‘Protective discriminations’ for women. The framers of the constitution took a

Pragmatic view. In incorporating Article 15(3) because they expected that this provision might compensate the laws of opportunities suffered by women during the last several centuries. Hence clause (3) of Article 15 of the constitution may be described as a compensatory provision for women.

The following are the relevant provisions in respect of women in Directive Principles of State Policy.

Article 39(a) : Equal Right of men and women to adequate means of livelihood and free legal aid .

Article 39(d) : Equal pay for equal work for both men and women.

Article 42 : Directs the state to make provision for securing just human

conditions and for maternity relief.

Article 47: Duty to raise the stand of living and improvement of health.

3.   RESERVATION FOR CHILDREN –

·         Art 45. Provision for free and compulsory education for children.- 
The State shall Endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

·         Art 24. Prohibition of employment of children in factories, etc.-

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

SPECIAL PROVISIONS FOR CHILDREN –

Article 15(3) empowers the state to make special provision for children. The constitution makers had known that the India of their vision would not be a reality, if the children of the country are not matured and educated. For this and thief exploitation by different profit makers for their personal gain, the constitution makers incorporated. Under Part III Fundamentals Rights the following provisions. Article 15(3) empowers the state to make special provisions for children under this clause and it is an exceptions for children under this clause  and it is an exception to the rule against discrimination provided by clauses (1) & (2) of Article 15. Special provisions may be made either by legislation or by executive order.

·         Article 21-A : The Constitution (86th amendment ) Act, 2002 added this Article 21-A has made education for all children of the age of 6 to 14 years a fundamental right. For the success of democratic system of Government, education is one of the basic elements. Education gives a person human dignity & develops himself & contributes to the development of the country. The makers of the constitution realising the importance of education have imposed a duty on the state under Article 45 as one of the directive principle of State policy to provide free & compulsory education to all children between the age of 6 to 14 years. The Supreme Court during 1993 in Unnikrishnan Case declared that right to education for the children of the age 6 to 14 is a fundamental right. Even after this, there was no improvement, but the government enacted constitution (86^th Amendment) Act, 2002 which would make education a Fundamental Right. The question arises as to how this right would be implemented since the population of the country has considerably increased & the number of Children of age from 6 to 14 years are in crores.

·         Article 24 :No Child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. This Article prohibits employment of children below 14 years of age in factories & hazardous employment. It is in the interest of Public health & safety of life of children. Children are assets of the nation.

In People’s Union for Democratic Rights – Vs- Union of India, 1983 (Asiad Case) it was contended that the Employment of Children Act, 1938 was not applicable in case employment of Children in the Construction work of Asaid Projects in Delhi since construction industry was not a process specified in the schedule of the Children Act. The Supreme Court rejected this contention & held that the construction work is hazardous employment & therefore under Article 24 no child

below the age of 14 years can be employed in the construction work even if construction industry is not specified in the schedule to the employment of the said Act. This Article however, does not prohibit their employment in any innocent or harmless job or work. The constitution under Article 24 provides for prohibition of

employment of children, the inadequacies, if any arising through constitutional commitment is substantially met with other legislations. In view of increase in the province of economic activities & social life, the incidents of child labour is still visible in many activities in India. However these inadequacies can be met with special power of the State Under Article 15 (3) & 24 to enact legislations to regulate child labour. The following are Indian legislate Child labour. The following are Indian legislations dealing with prohibition & regulation of child labour.

4.   THE MANDAL COMMISSION AFTERMATH –

The Mandal Commission was established in India in 1979 by the Janata Party government under Prime Minister Morarji Desai with a mandate to "identify the socially or educationally backward." It was headed by Indian parliamentarian B.P. Mandal to consider the question of seat reservations and quotas for people to redress caste discrimination, and used eleven social, economic, and educational indicators to determine backwardness.

·         Criteria to identify OBC

The Mandal Commission adopted various methods and techniques to collect the necessary data and evidence. In order to identify who qualified as an "other backward class," the commission adopted eleven criteria which could be grouped under three major headings: social, educational and economic.

·         Social

1.   Castes/classes considered as socially backward by others,

2.   Castes/classes which mainly depend on manual labour for their livelihood,

3.   Castes/classes where at least 25 per cent females and 10 per cent males above the state average get married at an age below 17 years in rural areas and at least 10 per cent females and 5 per cent mates do so in urban areas.

4.   Castes/classes where participation of females in work is at least 2 per cent above the state average,

·         Educational

1.   Castes/classes where the number of children in the age group of 5–15 years who never attended school is at least 25 per cent above the state average.

2.   Castes/classes when the rate of student drop-out in the age group of 5 15 years is at least 25 per cent above the state average,

3.   Castes/classes amongst whom the proportion of matriculates is at least 25 per cent below the state average,

·         Economic

1.   Castes/classes where the average value of family assets is at least 25 per cent below the state average,

2.   Castes/classes where the number of families living in kuccha houses is at least 25 per cent above the state average,

3.   Castes/classes where the source of drinking water is beyond half a kilometre for more than 50 per cent of the households,

4.   Castes/classes where the number of households having taken consumption loans is at least 25 per cent above the' state average.

5.   RESERVATION FOR ANGLO INDIANS –

·         Article 331 in the Constitution of India 1949

331. Representation of the Anglo Indian community in the Hose of the People Notwithstanding anything in Article 81, the President may, if he is of opinion that the Anglo Indian community is not adequately represented in the House of the people, nominate not more than two members of that community to the House of the People

333. Representation of the Anglo Indian community in the Legislative Assemblies of the States Notwithstanding anything in Article 170, the Governor of a State may, if he is of opinion that the Anglo Indian community needs representation in the Legislative Assembly of the State and is not adequately represented therein, nominate one member of that community to the Assembly