FUNDAMENTAL RIGHTS

FUNDAMENTAL RIGHTS

FEATURES AND IMPORTANCE OF FUNDAMENTAL RIGHTS

Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35, inspired from the Constitution of USA (i.e., Bill of Rights). They are known as ‘magna carta’ of the Constitution.

Features of Fundamental Rights

1. Available to: Some of the Fundamental rights are available only to the citizens of India while some are available to everyone including foreign nationals.
   • For ex — While Article 14 is available to all, Article 19 is available only to citizens.
2. Available against: All Fundamental Rights are available against the arbitrary action of the state while some are also available against private individuals as well. For ex — Article 17 is available against State as well as individuals, however, Article 16 is solely available against State.
3. Qualified: The state can impose reasonable restrictions on these rights, thus making them qualified and not absolute.
   • For ex — Restrictions on freedom of speech and expression are provided under Article 19(2).
4. Infringement: Fundamental rights are defended and guaranteed by Supreme Court; hence the aggrieved party can directly move to the Supreme Court on the infringement of these rights under Article 32.
5. Suspension: These rights can be suspended during the operation of a National Emergency except the rights defined under Article 20 and 21.
6. Restriction: The application of these rights can be restricted when a military rule is imposed under Article 34; they can be restricted or abrogated by Parliament for armed forces, police forces, intelligence agencies under Article 33.
7. Nature: Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons.
8. Justiciable: They are justiciable, allowing persons to move the courts for their reinforcement, if and when they are violated.
9. Execution: Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them.
10. Wide interpretation: These rights should be interpreted in the widest possible manner and are not mutually exclusive, forming an integrated theme of the constitution. Their waters must mix to form a grand flow of unimpeded and impartial justice [Maneka Gandhi v. Union of India].
11. Individual as well as community rights: Fundamental Rights have both individual rights as well as community rights. For ex — Untouchability [Article 17] is an individual right; right to religion [Article 25-28] entails both individual as well as collective freedom.

Fundamental Rights in India

• Right to equality [Article 14-18]: It ensures equality for all citizens. It prohibits inequality on the basis of caste, religion, place of birth, race, gender.
• Right to freedom [Article 19-22]: It ensures right to freedom of speech and expression, movement, residence, etc. Along with it, it ensures personal liberty and right to life to everyone.
• Right against exploitation [Article 23-24]: It condemns human trafficking, child labour, forced labour etc.
• Right to freedom of religion [Article 25-28]: It ensures freedom of conscience and gives every person right to practice, profess and propagate religion of their choice.
• Cultural and Educational Rights [Article 29-30]: It protects rights of religious, cultural and linguistic minorities by enabling them to conserve their heritage and culture.
• Right to Constitutional Remedies [Article 32]: It empowers citizens to directly approach Supreme Court in case of any infringement of fundamental rights.

Importance of Fundamental rights

1. For the nation
   • Democratic life: They are the very foundation and cornerstone of democratic life ushered in this country by the Constitution.
   • Values: Fundamental rights represent basic values cherished by people of the country since Vedic times.
   • Democratic legitimacy: They establish the framework of ‘democratic legitimacy’ for the rule of the majority.
   • Democratisation of life: The Constitution intended a deeper democratisation of Indian public and social life, and envisaged that this would be accomplished through Part III of the Constitution.
   • Balancing: It provided a mechanism by which it would be possible to establish a reasonable balance between stability and social change [Indian Express Newspaper v. UOI].
2. For the people
   • Development of human beings: They are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.
   • Feeling of security: Fundamental Rights generate a feeling of security amongst the minorities in the country.
   • Curbing discrimination: Equality is not simply about a guarantee of formal equal treatment, but about identifying the bases on which individuals and groups had been historically discriminated against, and to work to remedy that discrimination in the present day.
   • Decision making: It assisted the discovery of truth, strengthening the capacity of an individual in participating in decision making [Indian Express Newspaper v. UOI].
3. For Governance
   • Basic rights: No democracy can function in the absence of basic rights such as freedom of speech and expression.
   • Minimum standards: Fundamental Rights provide standards of conduct, citizenship, justice and fair play. They serve as a check on the government.
   • Restriction on state interference: Liberty is referred to that zone of freedom guaranteed to the individual, where the State’s powers of interference were limited or restricted altogether.
   • Basis of self-government: Freedom of speech, association, assembly, etc. allow people to express their aspirations, engage in political and cultural dissent, and create a public sphere that would form the basis of self-government.
   • Political democracy: They promote the ideal of political democracy, preventing establishment of an authoritarian and despotic rule in the country.
   • Prevent tyranny: They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. Thus, they aim at establishing ‘a government of laws and not of men’.
   • Prevent invasion by State: They prevent and protect the liberties and freedoms of the people against the invasion by the State.

Are fundamental rights absolute?

Fundamental Rights are not absolute. In the AK Gopalan case, the Court held there cannot be unlimited and absolute rights. Restrictions on some of the fundamental rights are:

1. Restrictions on Right to Freedom [Article 19]: Sovereignty and integrity of India, security of State, friendly relations with foreign nations, public order, decency and morality, contempt of court, defamation, incitement of offence, sedition.
   • Freedom of Assembly: It can be restricted under Section 144 of Criminal Procedure Code by a magistrate in case there is a risk of obstruction, annoyance or danger to human life, etc. Further, under IPC, assemblies can become unlawful in certain cases.
   • Freedom of Profession: In case of state monopolies, restrictions can be imposed by State on private individuals.
2. Right to life and personal liberty [Article 21]: It is limited by procedure established by law but due process of law is also followed.
3. Right to religious freedom [Article 25]: On the grounds of public order, morality, and health.

Criticism

• Qualified, not absolute: Fundamental Rights are subjected to innumerable exceptions, restrictions, qualifications, and explanations. For ex — Limitations laid down under Article 19(2) to 19(6) on the right to freedom.
• No Social and Economic Rights: Part III of the constitution mainly consists of political rights. While the Supreme Court has included certain social and economic rights (such as the right to work, free legal aid, etc.) under the ambit of fundamental rights, they are not explicitly provided under Part III.
• Lack of clarity: They are stated in a vague, indefinite, and ambiguous manner. For ex — public order, reasonable restriction, other authorities, public interest, etc.
• No Permanency: Supreme Court in Keshvananda Bharti v. State of Kerala held that Parliament can amend any part of the Constitution, including Part III, in accordance with the doctrine of basic structure. For ex — Parliament abolished the right to property.
• Suspension during Emergency: Except for Articles 20 and 21, enforcement of all the fundamental rights can be suspended during the operation of National Emergency. This puts the rights of citizens in continuous jeopardy.
• Expensive and time-taking remedy: The judicial process is too expensive due to the cost of lawyers, delay in proceedings, etc., hindering the common man from getting his rights enforced through the courts. For ex — Right to privacy judgment took around 5 years to be passed.
• Preventive Detention: It confers arbitrary powers on the State and negates individual liberty. It is a right of the State against the individual rather than the right of the individual against the State. Further, unlike India, no democratic country in the world has made preventive detention an integral part of their Constitutions.

RESERVATIONS IN INDIA

• Affirmative actions are a set of anti-discrimination measures intended to provide access to preferred positions in society to members of groups who would otherwise be excluded or under-represented. Reservation is a type of affirmative action.
• Objective of reservation: To ensure social justice by giving special justice to backward classes as they were denied equal opportunity for generations and required special assistance to catch up with forward castes.

Provisions for reservation in India

1. Article 15

• Article 15(3): Allows the State from making any special provision for women and children. Ex — reservation of seats for women in local bodies or provision of free education for children.
• Article 15(4): State can make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
• Article 15(5): State can make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes related to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions. Ex — reservation of seats in public educational institutions.
• Article 15(6): State can make any special provision for the advancement of any economically weaker sections of citizens.

1. Article 16

• Article 16(4): State can make any provision for the reservation 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.
• Article 16(4A): State can make any provision for reservation in matters of promotion, with consequential seniority, 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.
• Article 16(6): State can make any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens.

1. Article 46: 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.
2. Article 243D: Provides reservation of seats for SCs and STs in every Panchayat.
3. Article 243T: Reservation of seats for SCs and STs in every Municipality.
4. Article 330: Seats shall be reserved in the Lok Sabha for the Scheduled Castes and Scheduled Tribes.
5. Article 332: Reservation of seats for the Scheduled Castes and the Scheduled Tribes in the Legislative Assemblies of the States.
6. Article 335: Mandates reservations have to be balanced with the ‘maintenance of efficiency’.

Reservation Policy in India

• Reservation for SC, STs, OBCs: Reservation is provided to Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) at the rate of 15%, 7.5%, and 27% respectively in case of direct recruitment on an all-India basis by open competition.
• Reservations for differently-abled: Persons with Disability Act, 1995 provides for reservation for persons with disabilities in India. Under the Act, persons with disabilities got 3% reservation in both government jobs and higher educational institutions.
• Economically Weaker Sections (EWS): 10% Reservation to EWS was recently provided by the 103rd Constitutional Amendment Act, 2018. It amended Articles 15 and 16 to provide reservation to economically weaker sections in admission to educational institutions and government posts.

Judicial pronouncements regarding reservation

• State of Madras vs Champakam Dorairajan (1951): Struck down a Government Order of 1927 regarding caste-based reservation in government jobs and educational institutions.

• Indra Sawhney vs. Union of India (1992): 27% Government jobs for backward classes — with elimination of Creamy Layer — is constitutionally valid.
• Chebrolu Leela Prasad Rao vs. State of Andhra Pradesh (2020): SC held 100% reservation to ST deprives the General category, SCs, and OBCs of their due representation. It is violative of Article 14, 15, and 16. It held that equality of opportunity and pursuit of choice cannot be deprived arbitrarily.
• St Stephens vs. Delhi University case, 1992: SC ruled that Minority Educational Institutions (MEIs) can have 50% seats reserved for minorities.

Judicial pronouncements regarding reservation in Private Educational Institutions

• Inamdar vs. State of Maharashtra and TMA Pai Foundation vs. State of Karnataka: Government cannot introduce quota in private unaided educational institutions as it was violative of Fundamental Rights under Article 19(1)(g). The government enacted the 93rd constitutional amendment act to override the decision.
• Ashok Kumar Thakur vs. Union of India: Constitutional validity of the 93rd Amendment Act was upheld by the Supreme Court.
• Society for unaided private schools for Rajasthan vs. Union of India (2013): Court upheld the validity of the introduction of quota under the Right to Education Act, 2009 even in private unaided institutions, as education was not a purely commercial commodity. Article 21A is an obligation on the State and Right to Education is child-centric activity rather than institution-centric activity.

Judicial pronouncements regarding reservation in promotions

1. C.A. Rajendran v. Union of India (1967): Government is under no constitutional duty to provide reservations for SCs and STs, either at the initial stage of recruitment or at the stage of promotion.
2. Indira Sawhney v. Union of India (1992): SC held that the reservation policy cannot be extended to promotions and put a 50% cap on reserved seats. It also held that relaxation of qualifying marks and standards of evaluation for reservation in promotion were not permissible under Article 16(4), struck down the provision for reservation for EWS, and introduced the concept of the creamy layer for OBC reservations.
3. M. Nagaraj vs. Union of India (2006): Supreme Court upheld Parliament’s decision to extend reservations for SCs and STs to include promotions with three conditions:
   • Proof of benefit: State has to provide proof for the backwardness of the class benefitting from the reservation.
   • Quantifiable Data: State has to collect quantifiable data showing the inadequacy of representation of that class in public employment.
   • Administrative efficiency: State has to show how reservations in promotions would further administrative efficiency.
4. Jarnail Singh v. Lachhmi Narain Gupta (2018): Supreme Court ruled out the need for collecting quantifiable data to demonstrate the backwardness of public employees belonging to the SC/STs to provide reservations for them in promotions.
5. Faculty Association of AIIMS vs. Union of India (2013): In this case, the Supreme Court ruled that there are certain jobs for which merit alone should be the criterion. However, the same was overruled in a review petition, with the court stating that the government was free to amend the Constitution to provide reservation in faculty for super-specialty posts.
6. Mukesh Kumar v. State of Uttarakhand (2020): The Court held that Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting discretion on the State Government to consider providing reservations if the circumstances so warrant. It is settled law that the state cannot be directed to give reservations for appointment in public posts. However, if the state wishes to exercise its discretion and make such provision, it has to collect quantifiable data showing ‘inadequacy of representation of that class in public services.

ARGUMENTS FOR AND AGAINST RESERVATION QUOTAS

Arguments For

1. For recipients of reservation benefits
   • Chance of development: Gives them a possibility of developing socially as well as economically.
   • Class and caste distinction tend to coincide: Dalits in rural areas are often in the worst economic condition and are likely to be landless.
   • To tackle different forms of marginalization: Untouchability has acquired different forms such as honor killings for pratiloma marriages, Dalits not being given houses on rent.
   • Skewed representation: In 2017, there were only 4 SC/ST officers at the secretary level.
2. For the society
   • Historical wrongs: A chance to undo the historical wrongs committed.
   • Interest of society: Quotas should promote the interest of the entire society by promoting the interest of its weakest members.
   • Continuing derogatory practices against reserved sections: According to a recent survey by Amit Thorat, up to 47% of respondents in the hill state admitted to practicing untouchability. More than half of the forward caste people confessed to practicing untouchability. Further, nearly 68% of Brahmins in rural and 77% of Brahmins in urban areas of the state admitted to the practice.
3. For the nation
   • Talent pool: Allows the country to use the full talent pool available.
   • Demographic dividend: It can turn into disaster if not all are given equal opportunity to grow and develop.
   • Meritocracy vis a vis equality: Meritocracy is important; however, it will have no meaning without equality.
4. Other reasons
   • Inefficiency of normal development: Normal processes of development do not automatically close gaps between marginalized and dominant groups.
   • Untenable claim of compromise in productivity: A study conducted with respect to SC/STs working in Railways found no negative impact on productivity and efficiency in any area, and some positive effects in some areas of work — Ashwin Deshpande and Wieskoff (2014).

Arguments Against

1. For marginalized sections
   • Cornering of benefits: The Rohini commission highlighted that about 2,633 central list OBCs, about 1900 castes, have not proportionately benefitted.
   • Class within caste: With few members cornering benefits of reservation, it has created classes within a caste.
2. For the society
   • Alienation: Perpetuates alienation between general category and those reserved.
   • Feeling of apathy: From those sections of the unreserved category who do not benefit from the reservation but are otherwise not well-to-do.
   • Self-perpetuating: Instead of diluting caste identities, it perpetuates such primordial identities.
3. Other reasons
   • Compensatory discrimination: It replaces one form of discrimination with another—often called ‘compensatory discrimination.’
   • Mismatch hypothesis: High dropout rates of BC students indicate the need for counseling, remedial teaching, etc.

CREAMY LAYER IN RESERVATIONS FOR SC/ST

Arguments for creamy layer amongst SC/ST reservation

• Creation of space: It would help leave space for the less privileged among SC/STs.
• Caste cannot be the sole determinant: In Balaji v. State of Mysore, it was held that “caste of a person cannot be the sole criterion for ascertaining whether a particular caste is backward or not.”
• Prioritizing the most marginalized: The Supreme Court in the Jarnail Singh case noted that benefits are largely taken by the top creamy layer of the backward caste or class, leaving the weakest always weak while the fortunate layers benefit.
• Vote bank: Reservations can sometimes be used as a means to attract vote banks of politicians.
• Hindrance to development: They hinder the country’s growth, development, and competency. Therefore, it must be rationalized.
• Article 335: It states that affirmative action should be subject to the overall efficiency of public administration. Reservations in promotions may affect the merit-based culture of an organization.

Arguments against creamy layer amongst SC/ST reservation

• Precedence: Indra Sawhney (1992) case stated that any discussion on the creamy layer “has no relevance” in the context of SC/STs.
• Difference between OBCs and SCs: OBCs do not face the same kind and extent of discrimination as SCs. If OBCs cross a certain economic threshold, social discrimination typically reduces substantially.
• Protection: SC/STs are given job reservations not because they are poor, but because they face exclusion.
• A right and not a welfare: The first part of Article 335 stipulates job reservations for SC/STs as a right of representation, not as a welfare measure.
• Discrimination within service: There are about 12,000 cases lying with the SC/ST Commission complaining about discrimination in service.
• False notion of efficiency: The “loss in efficiency” argument results from an extremely conservative view of merit.

RESERVATION ON ECONOMIC GROUNDS

The 103rd Constitutional Amendment Act, 2019 provided for 10% reservation in government jobs and educational institutions to EWS (Economically Weaker Sections) among those not covered under any reservation plan.

1. Constitutional mandate: Article 46 of the Constitution provides that the State shall promote with special care the educational and economic interests of the weaker sections of society.
2. Need for new deprivation assessment criteria: The Supreme Court in Ram Singh v. Union of India (2015) held that social deficiencies may exist beyond caste (e.g., economic status, gender identity, etc.). Therefore, there is a need to move away from a caste-centric definition of backwardness, to be dynamic so that the most distressed can benefit.
3. Social benefits

• Increasing dissatisfaction among various sections: Political and class issues have been overpowered by caste issues, leading to a sense of dissatisfaction among communities.
• Reduce divisions: Unlike caste-based reservations that escalate caste-based divisiveness and encourage sub-nationalism, reservation on an economic basis may reduce such tendencies.
• Casteless society: Reservation based on economic background may pave the way for a casteless society, which was initially the purpose of Dr. Ambedkar’s reservation system.

Arguments against economic reservation

1. Purpose of reservation:

• Not an anti-poverty programme: Reservation exists because, in addition to being more likely to be poor than general castes, SCs and STs face social discrimination and exclusion that poor people from general caste backgrounds do not face.
• To undo historical injustice: Caste-based reservation is necessary in India due to historical negligence and injustices caused to backward communities.
• Reservation as an inclusive concept: As reservation quotas expand, they may become a mechanism of exclusion rather than inclusion. Currently, around 60% of seats are reserved, leaving only 40% open to merit.
• To ensure representation: The upper caste is already adequately represented in public employment.

2. Policy/Administrative Issues:

• Arbitrary ceiling: The income ceiling of Rs. 8 lakh is the same as for the creamy layer for OBC candidates, creating parity between SEBCs without supporting data.
• Broad criteria: The definition of EWS is too broad and would include a large section of the population, with no correlation between 10% and the population of EWS.
• Challenges in identifying beneficiaries: Very few in the taxable population (<3%) may misrepresent income, making the implementation of economic eligibility a potential nightmare prone to misuse.

3. Judicial Review: 

In the Indra Sawhney case, the Supreme Court denied reservation solely based on economic criteria. With EWS reservation now included, there is a breach of the 50% limit set by the Court. Earlier in 2016, the Gujarat High Court struck down a similar provision for Patidar community reservation brought by the Gujarat Government.

4. Other issues:

• Pandora’s box of demands: Demands from other sections to introduce new affirmative action policies.
• Shrinking public sector: 10% will not fulfill the expectations of a large section of the population.
• Tool of populism: Impacts the credibility of reservations as a tool for social justice.
• Sinha Commission report (2010): Cited as the basis for EWS reservation, it emphasized that EWS should have access to benefits of welfare schemes but not as an explicit reservation measure.

LOCAL RESERVATIONS/PRIVATE SECTOR RESERVATIONS

• Andhra Assembly passed a Bill in July 2019 providing that industries coming up either in the public sector or in public-private partnership must reserve 75% of jobs for locals.
• Haryana Cabinet cleared a draft ordinance seeking to reserve 75% of jobs in private enterprises earning less than ₹30,000 a month for local residents to address unemployment. The Punjab and Haryana High Court stayed the law. The Supreme Court set aside the Punjab and Haryana High Court order staying the controversial State law.

Legal basis:

• Article 16(3): Parliament may make a law prescribing a requirement of residence for jobs in a particular state. This power vests solely in Parliament, not state legislatures.
• Article 371D: Andhra Pradesh has powers under Section 371D for “direct recruitment of local cadre” in specified areas.

Case laws:

• Dr. Pradeep Jain v. Union of India (1984): To regard an individual from one state as an outsider in another state would deny constitutional rights and undermine national unity.
• Sunanda Reddy vs. State of Andhra Pradesh, 1995: The Supreme Court affirmed the observation in Pradeep Jain, striking down a state policy giving 5% extra weightage to candidates who studied in Telugu as the medium of instruction.
• Kailash Chand Sharma vs. State of Rajasthan (2002): The court held that measures taken by the state based on localism are not sanctioned by the constitutional mandate of equality.
• Uttar Pradesh vs. Pradip Tandon: The reservation for rural areas cannot be sustained on the grounds of representing socially and educationally backward classes, as 80% of the state’s population cannot be considered homogeneous. Reservations based on place of birth would violate Article 15.

Arguments in Favour of Reservations for Locals

1. Political reasons:
   • Legitimate right of State: The private sector benefits from public infrastructure, such as subsidized land allotment and tax exemptions.
2. Economic reasons:
   • Agrarian distress: Young people seeking to move out of agriculture often look for local jobs.
   • Sense of justice: There is a perception that central devolution is insufficient, particularly in Southern states. Job reservations offer a sense of indirect economic justice.
3. Social reasons:
   • Reaping the benefit of demographic dividend: To create a harmonious environment for the industry and youth, balancing industrial progress with economic equity.

Arguments against Reservations for Locals

1. Political implications:
   • Impact on the unity of the nation: It can increase parochial tendencies and discrimination, leading to a situation of locals vs non-locals in an area, posing a threat to national integration.
   • Localised protectionism: This policy could take India back to a time when the country was divided into smaller fiefdoms, each managed independently by rulers.
   • Violation of basic rights: Private sector jobs are traditionally based on skills and analytical abilities, ensuring employees have the fundamental right to work anywhere in India.
   • Violation of the federal structure: Forcing employers to hire local candidates in the private sector contradicts the federal structure framed by the Constitution, where government actions should align with public interest and avoid favoring specific groups.
2. Economic implications:
   • Impact on investments: This could discourage capital investment in the region, potentially causing capital flight and decreased competitiveness among companies.
   • Increases cost of production: Industrial units unable to ‘import’ labor from other regions bear the cost of training and employing local candidates.
   • Reduction in jobs: Multinational firms may relocate to other states, influenced by restrictions on hiring.
   • Ease of Doing Business: Such restrictions can hinder business operations, affecting the ease of conducting business.
3. Social implications:
   • Son of the soil sentiment: It can enhance regionalism.
   • Intolerance: This policy could decrease cross-regional understanding and increase intolerance toward people from other parts of the country.
   • Pandora’s box: It may trigger broader demands that could threaten national unity.
4. Unconstitutional:
   • Article 14: Reservations for locals go against the principle of equality.
   • Article 16(1): Prohibits discrimination on grounds of religion, race, caste, sex, descent, place of birth, residence, or any of them, ensuring equal opportunity for all citizens in employment.
   • Article 16(3): Only Parliament can make provisions regarding employment residency requirements.
   • Article 16(4): The Constitution does not provide a basis for local reservations in private employment.
   • Article 19(1)(g): Outsiders should not be restricted from taking jobs of their choice in the state.
   • Against the reservation ceiling: The 75% reservation policy contravenes the Supreme Court’s 50% ceiling for reservations to maintain meritocracy.
5. Other reasons:
   • Short-term solution: The benefits may only last until the state government finds alternative ways to generate jobs for locals.
   • Impracticable: The shortage of qualified workers in a state may impact the implementation.
   • Domicile reservation in jobs: While domicile quotas in education are fairly common, courts have been reluctant to expand this to public employment. It raises questions related to the fundamental right to equality of citizens.

SUB-CATEGORIZATION OF OBCs

OBCs are granted 27% reservation in jobs and education under the central government, but only a few affluent communities among the over 2,600 included in the Central List of OBCs have secured a major share. In August 2018, it was announced that data on OBCs would be collected in the 2021 Census, but no further announcements have been made.

Idea of sub-categorization

1. First Backward Class Commission report (1955): Proposed sub-categorization of OBCs into backward and extremely backward communities.
2. Mandal Commission report (1979): A dissent note by member L R Naik proposed sub-categorization into intermediate and depressed backward classes.
3. National Commission of Backward Classes (2015): Proposed that OBCs be divided into the following three categories:
   • Extremely Backward Classes (EBC-Group A): Facing social, educational, and economic backwardness, including aboriginal tribes, nomadic, and semi-nomadic tribes continuing traditional occupations.
   • More Backward Classes (MBC-Group B): Vocational groups continuing traditional occupations.
   • Backward Classes (BC-Group C): Comparatively more forward groups.
4. According to NCBC, 11 states (Andhra Pradesh, Telangana, Puducherry, Karnataka, Haryana, Jharkhand, West Bengal, Bihar, Maharashtra, Rajasthan, and Tamil Nadu) have sub-categorized OBCs for reservations in state government-owned institutions.

Commission’s Terms of Reference:

• To examine the uneven distribution of reservation benefits among different castes in the central OBC list.
• To establish a scientific approach for sub-categorization within OBCs, including criteria and norms.
• To identify respective castes/communities/sub-castes for comprehensive data coverage.
• To correct any repetitions, ambiguities, inconsistencies, and spelling or transcription errors.

Findings So Far:

1. 2018 data analysis of 1.3 lakh central jobs and higher education admissions under the OBC quota:

• 24.95% of these jobs and seats went to just 10 OBC communities.
• 97% of all jobs and educational seats went to just 25% of all sub-castes classified as OBCs.
• Representation in jobs and educational institutions: 983 OBC communities (37% of the total) had zero representation.
• Representation in recruitments and admissions: 994 OBC sub-castes accounted for only 2.68% of representation in recruitment and admissions.

2. According to the 2018-19 annual report of the Department of Personnel and Training, OBC recruitment in central jobs is considerably low.

• Number of professors in central universities: Not a single professor or associate professor appointed under the OBC quota in central universities. Posts reserved for them were being filled by candidates from the general category as OBC candidates were declared ‘None Found Suitable’ (NFS).

Need for sub-categorization

• Equitable distribution of representation: The Rohini commission highlighted that out of approximately 2,633 central list OBCs, about 1,900 castes have not proportionately benefited.
• For the betterment of more backward: This will enable the more backward among the OBC communities to access the benefits of reservation for educational institutions and government jobs.

CASTE CENSUS

Last month, the Supreme Court upheld the 27% quota for Other Backward Classes (OBC) in the All-India Quota seats for the National Eligibility-cum-Entrance Test (NEET) and reiterated that reservations for backward classes were an extension of the principle of equality under Article 15(1) of the Constitution. This is regarded as positive discrimination in the Indian context.

Need for a new Socio-economic caste census:

• Unreliability: The SECC conducted in 2011 has been criticized as “faulty” and “unreliable.” The 1931 census surveyed 4,147 castes, but SECC 2011 figures indicate there are over 46 lakh different castes.
• Lack of solid database: The Mandal Commission’s recommendations were critiqued for being based mainly on the “personal knowledge” of commission members and sample surveys.
• Spelling errors: The exercise was compromised due to different spellings used by enumerators for the same castes. In many cases, respondents reportedly refused to disclose their castes.
• Historical absence of data: Every Census in independent India from 1951 to 2011 published data on Scheduled Castes and Scheduled Tribes, but not on other castes.
• Issue with making data public: SECC 2011 included two components. Only the economic conditions of rural and urban households were released; caste data remains unreleased.
• For equitable representation: Accurate population numbers for each caste would help tailor reservation policies for fair representation.
• Under Section 11, NCBC Act, 1993: The Central government can revise lists every 10 years to exclude classes that have ceased to be backward and include new backward classes, but this exercise has not been conducted to date.

Challenges associated with a new socio-economic caste census:

• Demands from various sections: May lead to dissatisfaction and further demands for separate or larger quotas.
• System-sanctioned casteism: Labeling individuals by caste may reinforce and perpetuate the system.

50% RESERVATION LIMIT

The Supreme Court, in the Indra Sawhney case, capped reservations at 50% in 1992. The court ruled that “no provision of reservation or preference can be so vigorous as to destroy” the very concept of equality.

Challenges associated with a cap on reservations

• Cap of 50% doesn’t make sense: Dalits in India constitute 16.6% of the population, while Adivasis make up 8.6% (2011 Census). According to the Mandal Commission, OBCs account for 52% (based on 1931 data). Although this totals nearly 80%, reservations remain capped at 50%.
• Absence of legislative backing: No state or Union legislature has proposed such a cap. Additionally, the cap is not proportionate to the population covered under reservations, which exceeds the 50% limit.
• Defiance by states: In 1993, Tamil Nadu’s Assembly passed the Tamil Nadu BC, SC, and ST Act to defy the Indra Sawhney judgment, maintaining its reservation limit at 69%.
• Defiance by the centre: The Union government in 2019 introduced a constitutional amendment through Parliament, implementing a 10% quota in government jobs and educational institutions for economically weaker sections of the upper castes.
• Inconsistency in judgments: The Supreme Court invalidated reservations for Marathas in Maharashtra, citing the 50% ceiling among other factors. However, it did not apply the same reasoning in the case of EWS reservations.