Reservation In Public Services Not The Only Method For Improving Welfare Of Backward Classes; State Should Bring Other Measures : Supreme Court

In the judgment delivered in the Maratha quota case, a constitution bench of the Supreme Court has observed that reservation in public services is not the only means for improving the welfare of backward classes and that the State should bring other measures also for affirmative action.

"Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. The State ought to bring other measures including providing educational facilities to the members of backward class free of cost, giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be self-reliant", observed Justice Ashok Bhushan in the lead judgment(paragraph 170).

In this connection, Justice Bhushan's judgment referred to the observation made by Justice R.V.Raveendran in Ashoka Kumar Thakur vs. Union of India and others, 2008(6) SCC 1, that any provision for reservation is a temporary crutch, and that such crutch by unnecessary prolonged use,should not become a permanent liability.

Justice Bhushan also spoke in the judgment about the need to explore more avenues for providing opportunities for the weaker sections of the society in view of the emergence of the private sector.

"In view of the privatisation and liberalisation of the economy public employment is not sufficient to cater the needs of all. More avenues for providing opportunities to members of the weaker sections of the society and backward class to develop skills for employment not necessary the public service. The objectives engrafted in our Constituted and ideals set by the Constitution for the society and the Governments are still not achieved and have to be pursued".

A bench comprising Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat reiterated that the 50% ceiling limit on reservation was based on the principle of equality under Article 14 and refused to revisit the dictum laid down in the Indira Sawhney case.

"To change the 50% limit is to have a society which is not founded on equality but based on caste-rule. The democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 50% limit which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same. Thus,answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets", Justice Bhushan's judgment said.

'Affirmative Action Not Limited To Reservation Only': Supreme Court In Maratha Quota Case Hearing[Day 6]

Justice Ravindra Bhat discusses other forms of affirmative action

The separate judgment authored by Justice Ravindra Bhat has an elaborate discussion on "wider possibilities" of affirmative action.

"The term "special provision" in Article 15 (4) is of wider import, than reservations", Justice Bhat said in his judgment.

Justice Bhat highlighted that even when reservations are provided in education, sufficient numbers of the targeted students may not beable to achieve the goal of admission, because of the nature of the entrance criteria.

"Today,even if an SC, or SEBC candidate secures admission in a common entrance examination for a medical seat, in a private institution, the amounts charged as annual fees would exclude most of such candidates (even those who are ineligible to government scholarships, as being marginally above the threshold of ₹2,50,000/- per annum annual family income)", Justice Bhat observed.

He observed that there needs to be constant scrutiny, review and revision of policies such as scholarships for SC/ST/OBC students and their effectiveness, besides the aspect of increasing funding, etc.

In the context of affirmative actions through methods other than reservation, Justice Bhat cited examples such as incentivising the award of government contracts to firms that have a good record of recruiting members from racially or ethnically disadvantaged group. In this context, the examples of Karnataka, Telangana, Orissa etc were cited.

The judge also suggested that the definition and scope of CSR needs to be broadened to include measures to counteract the natural tendencies towards exclusion o fcertain groups.

"Private sector managements need to show sensitivity to societal patterns of exclusion and must consciously make an attempt not to fall prey dominant social stereotypes, which penalize people due to their birth into stigmatizing jobs, even if they might be individually qualified and competent", the judgment said.

Private companies can also pay attention to supplier diversity in matters of procurement. By encouraging supplies from firms owned by SCs, STs, or those from backward class or deprived classes, the large organized private sector in India could give a huge boost to the micro, medium and small enterprises owned by entrepreneurs from such marginalized groups.

"In view of all these developments, it is time that the states and the Union government gather data about the extent and reach of the existing schemes for employment, and in the field of education, take steps to ensure greater access, by wherever necessary, increasing funding, increasing the number and extent of coverage of scholarships, and setting up all manner of special institutions which can train candidates aspiring for higher education, to increase their chances of entry in admission tests, etc.

Likewise, innovative employment incentives to the private sector, especially in the manner of employment in contracts or projects awarded by the state or its instrumentalities, need to be closely examined and implemented. These welfare measures can also include giving tax incentives to schemes that fund scholarships and easy (or interest free) loans to SC, ST and SEBC students, which can enhance their access to educational institutions.

Other incentives, such as awarding marks while evaluating private entities for the purpose of public tenders, and giving them appropriate scores or advantage, if their workforce employs defined percentages of SC/ST or SEBC individuals, etc. too would make a substantial difference"

Also from the judgment:

States Have No Power To 'Identify' Socially & Educationally Backward Classes After 102nd Constitution Amendment : Supreme Court Holds By 3:2 Majority

Supreme Court Strikes Down Maratha Quota; Says No Exceptional Circumstance To Grant Reservation In Excess Of 50% Ceiling Limit