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Some useful observations of the Courts on Reservation Policy

 

Efficiency in administration It must not be forgotten that the efficiency in administration has such paramount importance, that it would be unwise and unpermissible to make any Reservation at the cost of efficiency of administration. That undoubtedly is the affect of Article 335. i

Special protectionSpecial protection under Article 16(4) is not in the nature of an exception. The principles of Art 46 are to be kept in mind, viz. that it is extended to the weaker sections of people. However, the Reservations should not be used to imperil administrative efficiency in the name of concessions to backwardness… Efficiency of administration is bound to be adversely affected, if general candidates of high merit are excluded from recruitment…. The politicization of casteism, its infiltration into unsuspected human territories and the injection of caste concession’s in schools and colleges via backwardness Reservations, are a canker in the rose of secularism.ii

50% limitA special provision should be less than 50%. How much less than 50% would depend on the circumstances in each case. iii

Constant reviewAll the same, the Government should not proceed on the basis that once a class is considered as a backward class, it should continue to be backward class for all time to come. Such an approach would defeat the very purpose of the Reservation. Therefore, the list of castes, which are entitled to Reservation must be kept constantly under review. iv

Reservation as temporary measureIf freedom, justice and equal opportunity to unfold ones own personality belong alike to Bhangi and Brahmin, prince and pauper, if the Panchama proletariat is to feel the social transformation, Article 16(4) promises, the state must apply equalizing techniques, which will enlarge their opportunities and thereby, progressively diminish the need for props. The success of State action under Article 16(4) consists in the speed, with which result oriented Reservation withers away as no longer a need, not in the ever widening and everlasting operation of an exception (Article 16(4)) as if it were a superficial right to continue backward all the time. To lend immortality to the Reservation policy is to defeat its raison’detre. To politicize this provision for communal support and party ends is to subvert the solemn undertaking of Article 16(1). To castefy Reservation even beyond the dismal groups of most backward people, euphemistically described as SC and ST, is to run a grave constitutional risk. Caste, ipso facto, is not class in a secular state. v

Promotions – Supreme Court does not favour quota in promotions as it is harmful from the point of view of efficiency.vi Also in the case Indire Swaney vs Government of India, the court opined against Reservations in promotion.

Caste as basis for Reservation – The caste can not be and should not be taken as the basis for Reservation for the following reasons: –

Caste can not be made sole beneficiary or dominant test. Economic backwardness would provide a much more reliable yardstick…There is a clear distinction between class and caste. vii

Backward classes are not synonymous with backward caste.viii

Poverty in rural areas can not be the basis of classification.ix

 “If the state patronage for preferred treatment accepts caste as the only insignia for determining social and educational backwardness, the danger looms large that this approach alone would legitimise and perpetuate caste-system. It does not go well with our proclaimed secular character as enshrined in the preamble of the Constitution. x

 

i Justice Gajendra Gadkar on Rangachari case 1961.

ii Akhil Bhartiya Soshit Karamchari Sangh Vs UOI (1981.

iii Balaji Vs State of Mysore.

iv Sreme Court in Periakarpan Vs Tamil Nadu (1971), Chote Lal and others Vs State of UP

v Karamchari case 1981.

vi Thomas vs. Kerala and General Manager Southern Railway vs. Rangachari, Indira Sawney case.

vii Balaji Vs State of Mysore 1963), State of AP VP Sagar (1968), Rajendra case 1968.

viii Trilokinath V State of J&K 1967.

ix Janki Pd Parimoo State of J&K (1973), State of UP Vs T. Tandon (1970.

x Justice Chandrachud in Vasant Kumar v State of AP 1980.

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September 28, 2009 - Posted by | Reservation/Affirmative action program

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