The article is written by Nikhil Thakur, from Manav Rachna University. The author has briefly reviewed the phrase “the silence of constitutional functionaries as a drawback for democracy” along with recent judgments in this regard.
The Supreme Court, in a landmark verdict to be viable “over the length and breadth of the nation” explicitly ruled that no government official, representative or so on shall be designated as an Election Commissioner. The verdict aims at ensuring the autonomy of the State Election Commission (SEC) who are responsible for conducting elections like that of the panchayat.
The division bench comprising Justice R. Gavai and Justice Rohinton Fali Nariman deplore the Goa government’s attempt to appoint its law secretary as the State Election Commissioner and even dismisses the appeal. As a result, the Hon’ble Court directed the Goa government to appoint an Election Commissioner and to comply with the High Court’s order and further ordered the government to notify the reservation under 5 municipalities for women as per the law within 10 days. The Supreme Court held that if a government official or a representative is appointed as the Election Commissioner it would cause “mockery of democracy”.
Reservation in India
In India, though reservation sounds like a new concept but is not; it possessed the same system even before her independence. As in 1882, William Hunter and Jyotirao Phule originally conceived the idea of caste-based reservations in India.
The basis of reservation in India was to uplift the section of a society which were socially, economically as well as politically at a disadvantageous stage. Those sections involve Schedule Caste (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), and economically backward classes to whom a kind of an advantage or benefit is ensured or provided in the field of the legislature, government jobs, promotion and so on with the prime objective of putting them at par with others. Reservation at higher educational institutions as well as in the parliament stands at 24.1%, as each state determines its reservation percentage, hence it varies from state to state.
After the independence, the Constituent Assembly decided to allow a reservation to certain sectors for 10 years only which shall be extended if the need persists or the parliament believes that the current reservation system is still required to overcome old age discrimination. Thus, the clauses/ provisions dealing with reservation were immediately inserted under the Constitution.
Prime objectives for insertion of reservation in the Indian Constitution were:
- To curb the historical/ traditional injustices or discrimination faced by the weaker section of the society.
- To ensure equal opportunities as well as representation.
- To uplift and promote the weaker section of the society.
The genesis of reservation in India was particularly because of the traditional caste-based system which had divided the entire class into 4 different hierarchies namely; Brahmins, Kshatriya, Vaishya, and Shudra. The Shudras were not even allowed to live in the village; they were forced to live on the outskirts. Thus, they have been facing these kinds of discrimination since the beginning of the later Vedic period.
The current reservation system in India is based on the system expounded by the then British Prime Minister (1933) Ramsay Macdonald who introduced a communal award under which a separate electorate like Muslims, Sikhs, Indian Christians, Dalits, etc were included. During the “Poona Pact,” it was decided that there shall be a single Hindu electorate under which there shall be further reservations.
Post-independence, the Constitution allowed the reservation only to Scheduled Caste (SC) and Scheduled Tribes (STs) but later in 1991 after the Mandal Commission even the “Other Backward Classes” (OBCs) were allowed reservation.
Later, in 1992 a landmark judgment of the Supreme Court came out in Indra Sawhney v. Union of India (1992), where the Hon’ble Court upheld the 27% percent quota for the backward sections of the society but at the same time, it dismissed the notification issued by the government in respect to 10% reservation for economically weaker sections (EWS) who belong to the upper section of the society.
Further, it was observed that the combined reservation percentage shall not exceed 50% of the total population of India, which means out of 100, 50 can be given for reservation not more than that. And in the same case, the concept of “creamy layer” was struck down and it was explicitly held that the reservation is restricted only upto the initial appointment of the person, it does not extend to promotion.
In a landmark judgment of Subhash Chandra v. Delhi Subordinate Service Selection Boards (2009), it was held that the beneficiaries, namely SC, STs and OBCs, are determined based on State and Union Territories. So, if any of the abovementioned beneficiaries moved from one state to another in those circumstances the benefits in another State or Union Territories cannot be enjoyed as it is not recognized there.
In another judgment of T. Devadasan v. Union of India (1964), the Hon’ble Court dismissed the Government’s notification of reserving 17.5% seats for SC and STs in Central service but carried forward the said reservation for the next two years to fill the unfilled quota. Consequently, this reservation shall total around 54% (when the reservation is carried forward) hence, it was found exceeding the upper limit, i.e 50% and declared as invalid.
Furthermore, in Saurabh Chandri v. Union of India 2003 and Pradeep Jain v. Union of India (1984), the 50% reservation at postgraduate and 70% reservation at undergraduate courses in medical institutions was held as valid and not in contravention to anything.
Reservation of 50% seats in the primary school of Uttar Pradesh for women was held as valid as observed in the case of Rajesh Kumar Gupta v. State of Uttar Pradesh (2005)
In 2011, a new category was inserted which was the Muslim sub-quota to which the government announced a 4.5% quota within the 27% quota for Other Backward Classes (OBCs). The government clarified the move by stating that the Muslim OBCs are not able to compete with Hindu OBCs thus this quota was necessary.
Later on, it was found that the government’s move to announce a 4.5% sub-quota to Muslims was just to expand their vote bank. As in the same year, elections were announced in 5 states. Further, Andhra Pradesh based on the “Sanchar Committee” struck down the sub-quota as it was carved out merely on basis of religion.
In 2019, the 103rd Constitutional Amendment, the economically weaker section was allowed 10% reservation in government jobs and educational institutions. The benefit of this scheme can only be enjoyed by such a person who does not belong to SC, STs, and OBCs. and This 10% shall be in addition to that 50% as mentioned in Indra Sawhney v. Union Of India 1992.
The Mandal Commission
It was a difficult task to determine the exact definition of “socially and educationally backward class”. The Constitution of India stipulates no definition of backward classes like SC and STs, which are expressly clarified under Article 366 (24) and (25).
Article 340 of the Indian Constitution deals with the appointment of the Commission for “socially and economically backward classes” and so on. This power has been utilized by the Indian President 2 times to determine the “socially and economically backward classes”:
- In 1953, under Kaka Kelkar Chairmanship, and
- In 1978, under B. P Mandal Chairmanship.
The Mandal Commission submitted the report in 1981 and stated that OBCs in the Indian population total about 52%; hence, 27% of reservations are made or ensured by the government. Besides determining the backward classes of people among Hindus, the Commission also determined backward classes other than Hindus namely; Muslims, Christians, Sikhs, etc.
In 1990, the then Prime Minister of India, VP Singh declared that the recommendations as submitted by the Mandal commission shall be followed and implemented.
There are a plethora of constitutional provisions in respect to reservation of Scheduled Caste (SC), Scheduled Tribes (STs), and Other Backward Classes (OBCs);
- There is an entire chapter that specifically deals with the reservation of scheduled caste and scheduled tribes that is Part 16/ XVI of the Indian Constitution.
- The State as well as the central government are empowered to make provisions for the reservation of scheduled caste and scheduled tribes in government services following Article 15(4) and 16(4).
- In 1995, through the 73rd Constitutional Amendment, a new clause 4A was inserted within Article 16 which allows the government to provide reservation in promotion. But later in 2001, via the 85th Constitutional Amendment, there were some alterations made in Article 16(4A) which ensured that the Scheduled Caste and Scheduled Tribes promotion on the basis of the reservation shall be given consequential seniority status.
- In 2000, the legislature passed the 81st Constitutional Amendment Act which inserted another new Clause 4B within Article 16. This amendment allowed the government to carry forward the reservation vacancies to next year thereby defying the 50% benchmark as held in Indra Sawhney v. Union of India 1992.
- Article 330 and 332 allow the reservation of seats for Scheduled Castes and Scheduled Tribes in parliament as well as in-state legislatures.
- Article 243D ensures the reservation of seats for SC and STs in panchayats.
- Article 243T ensures the reservation of seats of SC and STs in municipalities.
Predominantly the importance of having reservations in India is specifically to abolish the old-age or traditional practice of injustice or discrimination among the weaker, socially and educationally backward section of the society.
Further, the reservation shall ensure equal participation as well as representation of the Indian population as a whole. This would have another benefit attached to it, which is that it will ensure the advancement or upliftment of these aggrieved sections and promote the cause of equity.
Reservation in Municipal Elections
Part IX-A of the Indian Constitution specifically deals with municipalities. The instant part was inserted in the Constitution of India through the 74th Constitutional Amendment, 1992.
Particularly, Article 243T talks about the reservation of seats for Scheduled Caste, Scheduled Tribes, and women in every municipality. Any member for the reserved category can seek election for the post of chairperson in compliance with Article 243T(4).
According to Article 243T(2), out of the total number of seats which are reserved under Article 243T(1) not less than 1/3rd seats from the same category shall be reserved for women belonging to Schedule Caste and Scheduled Tribes.
In compliance with Article 243T(3), not less than 1/3rd of the total number of seats shall be occupied via direct election which shall be reserved for women not covered under the reserved category. This 1/3rd includes the number of seats reserved for women belonging to SC and STs categories under Article 243T(2).
The reservation of the seats along with the office of the chairperson shall cease to exist after the expiry of 40 years as stipulated under Article 334 of the Indian Constitution.
Role of the Election Commission
Under the Indian Constitution, Article 324 states that the Election Commission of India shall have the power of superintendence, direction, and control of conducting elections of Lok Sabha and the State legislative assemblies.
While in the election of municipalities the superintendence, direction, and control of conducting the same are vested in the hands of the State Election Commission (SEC) in compliance with Article 243ZA. The SEC is empowered to make such necessary changes or additions to the same for the proper execution of the election process.
State of Goa v. Fouziya Imtiaz Shaikh
The instant case of State of Goa v. Fouziya Imtiaz Shaikh (2021), raises few pivotal questions
in respect to Part IX-A of the Indian Constitution which deals with municipalities.
The bench comprises:
- Justice, Rohington Fali Nariman;
- Justice, B.R Gavai;
- Justice, Hrishikesh Roy.
Background, arguments and the Court’s opinion
In the instant case, the representative on behalf of the State Election Commission (SEC) admitted the fact that the director of SEC had fizzled to ensure 1/3rd reservation of women seats at 2 municipalities namely; Mormugao and Mapusa municipal council. It further accepted the fact that the director had to determine the reservation but due to the COVID 19 breakout and the impugned order, hence, the SEC needed to conduct the election on a timely basis.
The Bombay High Court at Goa observed and made a strong statement “that reservation for women in the Constitution and subsequently in state election” is pivotal for the upliftment and hence the steps taken by the respondent is a violation of the law.
Moreover, the court observed that when SEC notices any form of illegality it is expected from the same that it shall make the alteration, changes, and rectification and further to guide and give directions to the director who shall work accordingly as per the direction and the mandate enshrined under the Constitution instead of rushing and scheduling the election.
The Court further observed that complying with the theory of the Constitution and other laws the steps taken forward by the director in 3 instalments which were spread over 15 years were worthless to justify the gross constitutional violation executed.
Critical analysis of the judgment
- A plea was filed by the state of Goa before the Supreme Court challenging the Bombay High Court at Goa’s order which set aside or quashed the notification for election in 5 Municipalities (Margao, Mapusa, Mormugao, Sangeum, and Quepem). On appeal against the High Court order, the three-judge bench of the Supreme Court reserved its decision to allow written submission by the parties.
- The apex court further issued notices in favour of the State Election Commission and Fouziya Imtiaz Shaikh. Which stated that after considering all the opinions of the representatives in the case, the Supreme Court stayed the impugned order passed by the High Court of Bombay at Goa and the Election Commission notification which was passed in response to the High Court’s order.
- The Supreme Court dismissed the High Court’s order and the SEC was given a green chit to conduct elections in the 5 municipalities that were suspended.
Reservation is a fair concept in India, as it ensures a positive action against the traditional and old-age discrimination issues against the weaker section of the society. Reservation somehow creates a kind of animosity among the sections of society that are not getting benefits like the reserved one. When more and more people aspire to be covered within the purview of backwardness rather than forwardness, the nation would remain in the position of stagnation.
In State of Goa v. Fouziya Imtiaz Shaikh, the Supreme Court has taken a forward step by dismissing the High Court’s order and allowing the election in 5 municipalities.
- Goa: HC sets aside election order for 5 MCs, to Imtiazslams SEC, DMA | Goa News – Times of India (indiatimes.com)
- Maharashtra government moves SC ‘to establish democracy’ in council polls | Goa News – Times of India (indiatimes.com)
- SEC’s silence detrimental to democracy: HC | Goa News – Times of India (indiatimes.com)
- Mandal Commission
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