1.   

RESERVATIONS FOR BACKWARD CLASS V/S CASTE AS ENVISAGED BY THE CONSTITUTION MAKERS

Article 15(1)  is quoted hereunder :

“The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

It therefore leaves little doubt that the intention of the constitution makers was to prevent the state from making any provisions for any particular caste or community.”

However, the constitution makers realized the Socio – economic disparity existing and aimed at the alleviation of such disparities which is clearly evident by the inclusion of Article 16(4)[1] which reads: 

“Nothing in this article shall prevent the State from making any provision for reservation in matters of appointments or posts in favour of any backward class of citizens which, in the opinion of the state is not adequately represented in the services under the State”

Thus it can clearly be said that the intention of the constitution makers was never to provide any reservation to any caste in particular, but only to a  class as envisaged by article 16 (4). The absence of the words “scheduled castes and tribes” is very important. The difference between the terms class and caste is therefore imperative and evident.

Reservations however to Scheduled caste and Tribes explicitly were ensured in the house of people and legislatures under articles 330 and 332, but there was no mention of reservation of any caste or tribe elsewhere.  HOWEVER, even this reservation policy was limited to a period of only 40 years originally. This limit of 40 years was extended to 50 years by Constitution (Sixty-second Amendment) Act, 1989, s.2, and this term of 50 years was subsequently altered again by the Constitution (Seventy-ninth Amendment) Act 2000 to make it sixty years now as applicable currently.

Thus it was never the intention to implement the policy of reservations on caste or community except in case of parliamentary reservations. Even in case of parliamentary reservations, the intention was to limit such reservations for a limited period of time, a time till when such underrepresented, socially and economically  people become self reliant, self sufficient and come at par with the other sections of the society. It is however pointed out that the above contentions stand true, the constitution makers always included the concept of backward classes as in Article 16(4).

It becomes therefore becomes important to understand that what is a backward class and how is it different from a scheduled caste or tribe.

2.   

AMENDMENTS TO ARTICLES 15 AND 16:

In Jagwant Kaur V.  State of Bombay[2], the supreme court declared the proposition of creating special Harijan Colonies as void under article 15 (1). In State of Madras V. Champakam Dorairajan[3]  the Madras Govt had reserved seats in Medical Engineering Colleges for different communities in certain proportions on the basis of religion, caste and race. The State Act was defended on the basis of promoting social justice and bringing equality between disparate sections of society as required by Article 46 of the Directive Principles of State Policy.

Thus the Govt. decided to amend the constitution to legalize such acts and passed the Constitution (First Amendment) Act, 1951, and added Article sub clause (4) to Article 15. Article 15(4) now reads:

 (4) Nothing in this article or in clause (2) of 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 was the scheduled caste and tribes was used for non parliamentary reservations alongwith the term backward classes.

Further Article 16 (4) was amended to include articles 16(4A) and 4(B):

[4][(4A) 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 services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]

[5][(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.]

3.   

BACKWARD CLASSES:

Backward Classes are not defined anywhere in the constitution. Article 340 however empowers the president to appoint a commission to investigate conditions of socially and backward classes and it is on the basis of this report that the president may able to specify the backward classes. The decision of the govt. in this regard shall however be a justiciable issue. Under Article 341 and 342, the president specify certain caste and tribes to be scheduled caste and tribes. Backward classes which are not SC or ST fall under the category of OBC i.e. other backward classes as detailed in article 340.

It therefore becomes clear that the constitution since its inception had the idea of extending the advantages of concentrating to the real backward class and removing the developed class from such purview, that alone could have been the purpose for periodic assessment of backward classes by such a commission.

The Supreme Court has time and again asserted the need to differentiate between a backward caste and class and said that the benefit of the reservations should go to the backward class only and not to a well developed self sufficient backward caste. However, if a caste as a whole is backward, then the removal of the distinction specifically to that class, as between backward class and caste can be ignored.[6]

In Indira Sawhney V/s. Union of India also known as the Mandal Commission case, it was held

?         From the use of the word "class" in Art. 16(4), it cannot be concluded either that "class" is antithetical to "caste" or that a caste cannot be a class or that a caste as such can never be taken as a backward class of citizens. 

?         A caste is nothing but a social class - a socially homogeneous class… … it is a socially and occupationally homogenous class. Endogamy is its main characteristic.

?         If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward… … Once a caste satisfies the criteria of backwardness, it becomes a backward class for the purposes of Art. 16(4). Even that is not enough. It must be further found that that backward class is not adequately represented in the services of the State.

?         In the field of identification of 'socially and educationally backward classes' it may be stated that caste neither can be the sole criterion nor can it be equated with 'class' for the purpose of art. 16(4) for ascertaining the social and educational backwardness of any section of group of people so as to bring them within the wider connotation of 'backward class'… … Unless 'caste' satisfies the primary test of social backwardness as well as the educational and economic backwardness which are the established and accepted criteria to identify the 'backward class' a caste per se without satisfying the agreed formulae generally cannot fall within the meaning of 'backward class of citizens' under Art. 16(4), save in given exceptional circumstances such as the caste itself being identifiable with the traditional occupation of the lower strata - indicating the social backwardness.

?         There is no doubt that for purpose of Art. 16(4) no classification can validly be made only on the basis of caste just as it cannot be made only on the basis of religion, race, sex, descent, place of birth or any of them, the same being prohibited by Article 16(2)…… … The identification is of  @page-SC485 the backward classes of citizens, which have to be socially and, therefore, educationally and economically backward. Any factor - whether caste, race, religion, occupation, habitation etc. - which may have been responsible for the social and educational backwardness, would naturally also supply the basis for identifying such classes not because they belong to particular religion, race, caste, occupation, area etc. [R1] but because they are socially and educationally backward classes.

?         Per Kuldip Singh, J. : "Class" under Article 16(4) cannot be read as 'caste'. Castes cannot be adopted as collectivites for the purpose of identifying the "backward class" under Article 16(4). Occupation (plus income or otherwise) or any other secular collectivity can be the basis for the identification of "backward classes". Caste-collectivity is unconstitutional and as such not permitted[R2] … … …  "Not adequately represented in the services under the State" [R3] is the only test for the identification of a class under Article 16(4). Thereafter the 'backward class' has to be culled out from out of the classes which satisfy the rest of inadequacy. Article 16(4) permits reservation of appointments/posts in favour of classes of citizens which in the opinion of the State are not adequately represented in the service under the State. Once such classes are identified then the reserve posts are to be offered to the backward sections of those classes.

?         Backward [R4] class in Article 16(4) cannot be read as backward caste. Expression 'backward class' is of wider import and there being no ambiguity or danger of unintended injustice in giving its natural meaning it should be understood in its broader and normal sense. Backward class under Article 16(4) is not confined to erstwhile Sudras or depressed classes or intermediate backward classes or intermediate backward classes amongst Hindus only. Reservation under Article 16(4) being for any class of citizens and citizen having been defined in Chapter II of the Constitution includes not only Hindus but Muslims, Christians, Sikh, Buddhists, Jains etc. the principle of identification has to be of universal application so as to extend to every community and not only to those who are either converts from Hinduism or some of whom who carry same occupation as some of the Hindus……… Similarly identification of backward class [R5] by such factors as dependence of group or collectivity on manual labour, lower age of marriage, poor schooling, living in kuccha house etc. and applying it to caste would be violative of Article 16(2) not only for being caste based but also for violation of Article 14 because it excludes other communities in which same factors exist only because they are not Hindus. Further the group or collectivity, thus determined would not be caste coupled with other but on caste and caste alone. Identification of a group or collectivity by any criteria other than caste, such as, occupation cum social cum educational and economic criteria ending in caste may not be invalid…. ………… Occupation [R6] should furnish the starting point of determination of backward class. And if in ultimate analysis any Hindu caste is found to be occupationally, socially, educationally and economically backward it should be regarded  as eligible for benefit under Article 16(4) because it would be within constitutional sanction. Moreover, identification alone does not entitle a group or class to be entitled for protective benefits. Such group or collectivity should be inadequately represented. A Government of a State or the Central Government may on evaluation after five or ten years direct a group or collectivity to be excluded from the list of backward classes if it finds it adequately represented. What is adequate representation is of course the primary concern of the Government. But the exercise should be objective.

Thus the backwardness contemplated by Art. 16(4) is mainly social backwardness. It would not be correct to say that the backwardness under Art. 16(4) should be both social and educational[R7] .

To summarise :

1.      Caste is not the only criterion for reservations

2.      If caste alone is the criterion it would be violative of article 15(1) and 16(2) and unconstitutional

3.      If the Caste as a whole  qualifies as a backward class, then reservations can be made for such a caste, but it must be remembered that the basis remains that of class

4.      Caste as the Hon’ble court understood was existing only in the Hindu system and it was not existing in other religions. The court interpreted that the intention of the constitution makers was to include other backward classes also, the term class was imported. Thus class is a wider term than caste and includes caste within its ambit.

5.      Backward refers primarily to social backwardness and then to educational backwardness.

6.      Per B.P. Jeevan Reddy, J. (for himself and on behalf of M.H. Kania C.J. and M.N. Venkatachaliah, A.M. Ahmadi, JJ.)- Neither the constitution nor the law prescribe the procedure or method of identification of backward classes. Nor is it possible or advisable for the Court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it.        (Paras 88A, 121(3)(b))

7.      "If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward. (See Page 717 para 783). Reservation is not being made under clause (4) in favour of a `caste' but a backward class. Once a caste satisfies the criteria of backwardness, it becomes a backward class for the purposes of Article 16(4)."

4.   

CREAMY LAYER TO BE EXCLUDED

?         Inclusion of castes in the list of Backward classes cannot be mechanical and cannot be done without adequate relevant data. Nor can it be done for extraneous reasons. Care should be taken that the forward castes do not get included in the backward castes list.

Likewise, periodic examination of a Backward class could lead to its exclusion if it ceases to be socially backward or if it is adequately represented in the services. Once backward, always backward is not acceptable. In any case, the `creamy layer' has no place in the reservation system

?         If forward classes are mechanically included in the list of backward classes or if the creamy layer among backward classes is not excluded, then the benefits of reservation will not reach the really backward among the backward classes. Most of the benefits will then be knocked away by the forward castes and the creamy layer. That will leave the truly backward, backward for ever.

?         In Indira Sawhney, on the question of exclusion of `creamy layer' from the Backward Classes, there was agreement among eight out of the nine learned Judges of this Court. There were five separate judgments in this behalf which required the "cramy layer" to be identified and excluded.

?         The said judgment laid emphasis on the relevance of caste and also stated that upon a member of the backward class reaching an "advanced social level or status", he would no longer belong to the backward class and would have to be weeded out.

?         Per Justice Jeevan Reddy “there are sections among the backward classes who are highly advanced, socially and educationally and they constitute the forward section of that community. These advanced sections do not belong to the true backward class. They are "as forward a any other forward class member" (para 790). "If some of the members are far too advanced socially (which in the context necessarily means economically and may also mean educationally), the connecting thread between them and the remaining class snaps. They would be misfits in the class"

Per Justice Sawant: Social advancement is to be judged by the `capacity to compete' with forward castes, achieved by the members or sections of the backward classes. Legally, therefore, these persons or sections who reached that level are not entitled any longer to be called as part of the backward class whatever their original birthmark. Taking out, these "forwards" from the "backwards" is `obligatory' as these persons have crossed that Rubicon… … what is meant by "capacity to compete", the learned Judge explained (para 522) that if a person moves from Class IV service to Class III, that is no indication that he has reached such a stage of social advancement but if the person has successfully competed for "higher level posts" or at least "near those levels", he has reached such a state.

?         Kuldip Singh, J. (para 385) referred to the "affluent" section of the backward class. Comparatively "such persons" in the backward class - though they may not have acquired a higher level of education - are able to move in the society without being discriminated socially."

?                     Sahai, J. (para 629) observed that the individuals among the collectivity or the group who may have achieved a "social status" or "economic affluence", are disentitled to claim reservation…… Exclusion of "creamy layer" achieves a social purpose. Any legislative or executive action to remove such persons individually or collectively cannot be constitutionally invalid.

?                     As appears from the judgments of six out of the eight Judges, viz. Jeevan Reddy (for himself and three others), Sawant and Sahai JJ. - (i.e. six learned Judge out of nine) - they specifically refer to those in higher services like IAS, IPS and All India Services or near about as persons who have reached a higher level of social advancement and economic status and therefore as a mater of law, such persons are declared not entitled to be treated as backward. They are to be treated as creamy layer "without further inquiry". Likewise, persons living in sufficient affluence who are able to provide employment to others are to be treated as having reached a higher social status on account of their affluence, and therefore, outside the backward class. Those holding higher levels of agricultural land holdings or getting income from property, beyond a limit, have to be excluded from the backward classes. This, in our opinion, is a judicial "declaration" made by this Court.

?                     As the `creamy layer' in the backward class is to be treated "on par" with the forward classes and is not entitled to benefits of reservation, it is obvious that if the `creamy layer' is not excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of backward classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals that is to say, equal to the rest of the backward class. These twin aspects of discrimination are specifically elucidated in the judgment of Sawant, J. where the learned Judge stated as follows (para 520 : "....to continue to concern upon such advanced sections ......... special benefits, would amount to treating equals unequally ..... secondly, to rank them with the rest of the backward classes would ........ amount to treating unequals equally." Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) and also of Articles 16(4).

?         The mere inadequate representation of a particular backward class in public services following as a consequence of exclusion of creamy layer is not legally sufficient to provide or continue reservation to the creamy layer. Reservation even for Backward classes can be made only if it will not undermine the efficiency of the administration in the particular department.

?                     The constitutional principle that equals cannot be treated unequally and unequals cannot be treated equally based on Articles 14 and 16(1) overrides other considerations. In fact, in Indira Sawhney, the Supreme Court itself declared that in certain departments, there is to be no reservation whatever even for backward classes. … …. Thus, assuming that, when creamy layer is excluded, there will be inadequate representation of certain Backward classes in services, that cannot be a valid reason for the continued inclusion of the cream layer in the Backward Class, after Indira Sawhney.

When Governments unreasonably refuse to eliminate creamy layers from the backward classes or when governments tend to include more and more castes in the list of Backward Classes without adequate data and inquiry, a stage will be reached soon when the whole system of reservation will become farcical and a negation of the constitutional provisions relating to reservation. The resistance of the creamy layer to get out of the lists is as bad as the clamour for entry into the quota system of various castes whose social status does not conform to the law decided by this Court. We earnestly hope that Constitutional provisions will not be converted into citadels for unjustified patronage.

5.   

PROMOTIONS

?         Majority view (S. Ratnavel Pandian, T.K Thommen, R.M. Sahai, JJ. concurring) (Ahmadi, J. Not expressing any opinion.): Article 16(4) does not contemplate or permit reservation in promotions as well. It is true that the expression "appointment" takes in appointment by direct recruitment, appointment by promotion and appointment by transfer. It may also be that Article 16(4) contemplates not merely quantitative but also qualitative support of backward class of citizens. but this question has not to be answered on a reading of Article 16(4) alone but on a combined reading of Article 16(4)  and Article 335.

?         Reservation of appointments or posts theoretically and conceivably means some impairment of efficiency. There can be no justification to multiply 'the risk' by holding that reservation can be provided even in the matter of promotion. While it is certainly just to say that a handicap should be given to backward class of citizens at the stage of initial appointment, it would be a serious and unacceptable inroad into the rule of equality of opportunity to say that such a handicap should be provided at every stage of promotion throughout their career. That would mean creation of a permanent separate category apart from the mainstream - a vertical division of the administrative apparatus. The members of reserved categories need not have to compete with others but only among themselves. There would be no will to work, compete and excel among them. Whether they work or not, they tend to think their promotion is assured. This in turn is bound to generate a feeling of despondence and 'heart-burning' among open competition members. At the initial stage of recruitment reservation can be made in favour of backward class of citizens but once they enter the service, efficiency of administration demands that these members too compete with others and earn promotion like all others; no further distinction can be made thereafter with reference to their "birth-mark". It is wrong to think.

?         Denying reservation in matter of promotion does not have the effect of confining the backward class of citizens to the lowest cadres. It is well known that direct recruitment takes place at several higher levels of administration and not merely at the level of Class IV and Class III.         (Para 107)

?         The expression "consistently with the maintenance of efficiency of administration" used in Art. 335 is related not only to the qualifications of those who are appointed, it covers all consequences to the efficiency of administration on account of such appointments. They would necessarily include the demoralisation of those already in employment who would be adversely affected by such appointments, and its effect on the efficiency of administration. The only reward that a loyal, sincere and hard-working employee expects and looks forward to in his service career is promotion. If that itself is denied to him for no deficiency on his part, it places a frustrating damper on his zeal to work and reduces him to a nervous wreck. There cannot be a more  damaging effect on the administration than that caused by an unreasonable obstruction in the advancement of the career of those who run the administration. The reservations in promotions are, therefore, inconsistent with the efficiency of administration and are impermissible under the Constitution.        (Paras 466, 467)

?         Article 16(4) permits reservation of appointments or posts in favour of any backward class of citizens only at the initial stage of entry into the State services. Article 16(4) does not permit reservation either to the selection posts or in any other manner in the process of promotion. It is settled proposition of law that right to promotion is a condition of service.

?         Once a person is appointed he is governed by the conditions of service applicable thereto. Appointment and conditions of service are two separate incidents of service. Conditions of service exclusively come within the expression "matters relating to employment" and are covered by Article 16(1)  then where is the justification to bring promotion within Article 16(4) by giving strained-meaning to the expression 'posts'.

?         The only conclusion by reading Articles 16(1), 16(2) and 16(4) which can be drawn is that all conditions of service including promotion are protected under Articles 1691) and (2). Article 16(4) makes a departure only to the extent that it permits the State Government to make any provision for the reservation of appointments or posts at the initial stage of appointment and not in the process of promotion.

6.   

LOWERING OF QUALIFICATION MARKS

?         (ZD[R8] ) Constitution of India, Art.16(4), Art.311, Art.335 - Reservation for backward classes - Not permissible in promotion - State can extend concessions and relaxations to members of reserved categories in matter of promotion - But could not prescribe lower qualifying marks or lesser level of evaluation for reserved categories.

?         It would be permissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration.

?         We must also make it clear that it would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. The relaxation concerned in Thomas and the concessions namely carrying forward of vacancies and provisions for in-service coaching/training in Karamchari Sangh are instances of such concessions and relaxations. However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the 0. B. Cs., S. Cs. and S.Ts. -- consistent with the efficiency of' administration and the nature of duties attaching to the office concerned - in the matter of direct recruitment, such a course would not be permissible in the matter of promotions for reasons recorded hereinabove.

?         Further in S Vinod Kumar V. Union of India (1996)

Constitution of India, Articles 16(4) and 335 - Reservation - Relaxation in eligibility conditions - Reservation in promotions - Efficiency of administration is not to be compromised as per the decision in Indira Sawhney's case - There cannot be any relaxation in qualifying standard where qualifying examination is held to determine the fitness of the candidates for promotions - Tribunal was in error while observing that such relaxations were saved in Indira Sawhney's case by the Supreme Court - Even if reservations are provided in promotions, a provision for lower qualifying marks or lesser level of evaluation is not permissible in the matter of promotions by virtue of Article 335. [Paras 6 to 9]

7.   

The Eighty Second Amendment

THE CONSTITUTION

 (EIGHTY SECOND AMENDMENT) ACT 2000

Statement of Objects and Reasons appended to the Constitution (Eighty Eighth Amendment) Bill 1999 which was enacted as the Constitution (Eighty Second Amendment) Act 2000

The Scheduled Castes and the Scheduled Tribes had been enjoying the facility of relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion. The Supreme Court in its judgment dated 1-10-1996 in the case of S. Vinod Kumar Vs. Union India held that such relaxations in matters of reservation in promotion were not permissible under article 16(4) of the Constitution in view of the command contained in article 335 of the Constitution. The Apex Court also held that the law on the subject of relaxations of qualifying marks and standards of evaluation in matters of reservation in promotion is one laid down by the nine-judge Constitution Bench of the Supreme Court in the case of Indira Sawhney and others Vs. Union of India and others. Para 831 of Indira Sawhney judgment also held such relaxations as being not permissible under article 16(4) in view of the command contained in article 335 of the Constitution. In order to implement the judgments of the Supreme Court, such relaxations had to be withdrawn with effect from 22.07.1997.

2. In view of the adverse effect of the order dated 22.07.1997 on the interests of Scheduled Castes and Scheduled Tribes, representations had been received by the Government from several quarters including the Members of Parliament. Considering the various representations, the Government has reviewed the position and decided to move for constitutional amendment with a view to restore the relaxations which were withdrawn vide instructions issued by the Department of Personnel and Training on 22.07.1997.

VASUNDHARA RAJE

New Delhi;

The 22nd December, 1999

THE CONSTITUTION (EIGHTY SECOND AMENDMENT) ACT, 2000

[8th September 200]

An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Fifty-first year of the Republic of India as follows :—

1. Short title: This Act may be called the Constitution (Eighty-second Amendment) Act, 2000

2. Amendment of article 335: In Article 335 of the Constitution, the following proviso shall be inserted at the end,

namely :—

"Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State[R9] ".

8.   

Understanding Article 335

Article 335 reads as under

335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.- The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

The language by itself makes it clear that the claims of members of SC and ST shall be taken into consideration in the making of appointments to services and posts in connection with the affairs of the Union or of a State. However, it is important to note that the words “consistently with the maintenance of efficiency of administration” are included and included with a deliberate express intention. The intention alone could be to prevent any inefficiency in the administration by such special provisions for SC and ST.

AND AS ABOVE, THE AMENDMENT READS :

"Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State[R10] ".

The amendment to article 335 by the 82 Amendment nullifies the essence and spirit of the article. As naturally, the inefficiency could well be affected by incompetent candidates entering into fields requiring specialized knowledge (eg. Medical science, engineering etc.), by promoting those candidates who do not deserve to be promoted owing to lack of experience and necessary skill or by allowing such persons to enter the services or profession who do not have the required amount of qualification criteria (eg. Marks/scores/experience).

AMENDMENT TO ARTICLE 335 IS THUS UNCONSTITUTIONAL IN THE EYES OF LAW AND UNJUSTLY OVERRIDES THE SC VERDICTS IN INDIRA SAWHNEY CASE as to no reservation in promotion and no reduction in qualification marks or criteria.

9.   

ILL EFFECTS OF THE AMENDMENT

Given hereunder are some of the cases where the provisions of reservations had been grossly violated and if not for the supreme court, grave injustice would have been done. However, after the passing of the amendment act, the courts would be handicapped to check such injustice and aggrandizement policies of the political parties.

1.      Balaji V. State of Mysore: The state reserved 68% for SC ST and OBC’s

2.      State of MP V. Nivedita Jain – State Govt. completely relaxed min qualifying marks in Pre Medical exam for selection to medical colleges of the state in respect of SC ST candidates. Even the ones with 5% marks could enter through the SC ST quota, but in the open category students with even 85% were denied reservation.

3.      Dr. Priti Srivatsava V. State of Madhya Pradesh – merit alone to be the criterion for super speciality courses  in medical and engineering and no quota can be allowed in super speciality courses.

4.      Devedasan V. Union of India – constitutional validity of 50% carry forward rule was examined and so was amended article 16(4) examined. Held – communities each year should not be excessive so as to create monopoly or to interfere unduly with the legitimate claims of other communities – 50% ceiling was valid, but how much less than 50% shall be considered on case to case basis.

5.      S Vinod Kumar V. Union of India 1996

10.   

THUS THIS WRIT PETITION PARYS TO QUASH THE 82ND AMENDMENT TO ART 335 ON THE GROUNDS MENTIONED HEREIN, AS ALSO SUMMARISED IN THIS POINT

Why should the amendment be quashed in Summary:

The amendment in its statement of objects and reasons itself states that (and is quoted hereunder):

Statement of Objects and Reasons appended to the Constitution (Eighty Eighth Amendment) Bill 1999 which was enacted as the Constitution (Eighty Second Amendment) Act 2000

The Scheduled Castes and the Scheduled Tribes had been enjoying the facility of relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion. The Supreme Court in its judgement dated 1-10-1996 in the case of S. Vinod Kumar Vs. Union India held that such relaxations in matters of reservation in promotion were not permissible under article 16(4) of the Constitution in view of the command contained in article 335 of the Constitution. The Apex Court also held that the law on the subject of relaxations of qualifying marks and standards of evaluation in matters of reservation in promotion is one laid down by the nine-judge Constitution Bench of the Supreme Court in the case of Indira Sawhney and others Vs. Union of India and others. Para 831 of Indira Sawhney judgement also held such relaxations as being not permissible under article 16(4) in view of the command contained in article 335 of the Constitution. In order to implement the judgements of the Supreme Court, such relaxation had to be withdrawn with effect from 22.07.1997.

2. In view of the adverse effect of the order dated 22.07.1997 on the interests of Scheduled Castes and Scheduled Tribes, representations had been received by the Government from several quarters including the Members of Parliament. Considering the various representations, the Government has reviewed the position and decided to move for constitutional amendment with a view to restore the relaxation which were withdrawn vide instructions issued by the Department of Personnel and Training on 22.07.1997.

VASUNDHARA RAJE

New Delhi;

The 22nd December, 1999

Thus the amendment act seeks to nullify the ratio which was carved out by the supreme court after a deep study of not only the words but also the spirit of the constitution. The amendment blatantly overrides such well founded ration of the sentinels of justice and equality and marks the beginning of self aggrandizement policies of the various political parties in absolute violation to those articles which form the spine of the constitution, Articles 14, 15 and 16. This would have effects of nullifying the ratio decedendi of cases like Indira Sawhney, Nivedita Jain, Balaji’s Case, Dr. Priti Srivastava’s case, S Vinod Kumar and others.

It would now be possible for the executive

?         to set even 0% qualifying limit for exams where students in the open category can not even qualify with 85%.

?         To implement such relaxed evaluation standards and qualification criterion in super specialty courses like MBBS, MD, MS etc. where even human life could be endangered

?         To make reservations in promotions. Thus inefficient people may hold the highest posts of the country, not because of their academic accolades, but because they belong to a certain section of society. It is to be remembered, that such person snaps his tie with such section as soon as he joins the services as he becomes self sufficient, self reliant and can compete with others, yet the amendment act unjustly confers upon the benefit of reservations. This clearly violates “article 14, 15 and 16” as treating equals unequally is violative of article 14, 15 and 16.

?         THE AMENDMENT ITSELF IS UNCONSTITUTIONAL as it includes only SC and ST and excludes backward classes which time and again has been held to be the primary criteria by the SC and the constitution.