The Hindu : Where Parliament is the appeals court

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Sunday, Jun 01, 2003

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Where Parliament is the appeals court

Whenever courts have struck down legislative or executive actions in the matter of reservation, Parliament has nullified them by amending the Constitution, writes J. Venkatesan.

THE CONSTITUTION envisages equality before law under Article 14 and Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. However Article 15 (3) empowers the state to make special provisions for women and children.

Article 16 (4) lays down that the state would not be prevented from making any provision for reservation in matters of promotion to any class or classes of posts in the services of the State in favour of the Scheduled Castes and the Schedules Tribes.

The Constitution initially provided for reservation for the SCs and the STs for a period of 10 years which has been extended from time to time. However, the lacuna in the Constitution to provide for reservation for the Other Backward Classes (OBCs) was felt as early as in 1951, when the Supreme Court struck down as ultra vires a "communal G.O." issued by the then Madras Government providing for reservation to such classes of people in public services and education institutions.

There was considerable protest in the southern States and the Constitution was amended for the first time. Article 15 (4) was added, according to which "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 SCs and the STs".

Till the late 1980s, only the SCs and the STs enjoyed the constitutional protection of reservation. When the implementation of the Mandal Commission report, recommending 27 per cent reservation to Other Backward Classes in jobs and educational institutions, was challenged in the Supreme Court, it held that reservation for all classes should not exceed 50 per cent and that the "creamy layer" among them should be excluded.

The court also struck down as invalid an executive order issued by the Narasimha Rao Government in 1991 providing for 10 per cent reservation for the "other economically backward classes" (OEBCs) in jobs and educational institutions.

To overcome the Mandal judgment, the Constitution was amended to add Clause 4A to Article 16 to provide for reservation even in promotions; to ensure that the seniority of such promotees was protected as well to relax qualifying norms for the SCs and the STs in promotions and to allow the Government to carry forward any vacancy to the next year.

It must also be noted that though Article 46 of the Constitution under Directive Principles of State Policy envisages that the state shall protect the economically weaker sections from social injustice and all forms of exploitation, no concrete step has been taken so far to implement it.

Though the former Chief Minister of Tamil Nadu, M.G. Ramachandran, tried to introduce legislation in the early1980s for the benefit of the OEBCs, the move was given up following widespread protests.

Considering that the apex court has put a ceiling of 50 per cent on reservation for all categories, any alteration in the arrangement can be done only through another constitutional amendment.

As Tamil Nadu has provided for 69 per cent reservation (the only State in the country to have more than the 50 per cent quota) and Parliament has placed this legislation in the Ninth Schedule of the Constitution (outside the purview of courts), some suggest that reservation for the OEBCs can be provided over and above the 50 per cent limit and this law can also be put under the Ninth Schedule, notwithstanding the fact that the Act pertaining to Tamil Nadu is before a Constitution Bench of the apex court.

Whenever courts have struck down legislative or executive actions in the matter of reservation, Parliament has nullified them by amending the Constitution. There is no reason why another amendment for the benefit of the OEBCs cannot be made.

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