Can we overcome prejudice by legislation?
By Yashiveer Kirti Anand; ILNU, Nirma University
The 14th Amendment to the U.S Constitution was ratified in 1868, which granted citizenship and equal protection to all citizens. Similarly, Article 16 in Indian Constitution aims to give equal protection and employment opportunities to all citizens. But, still there are hurdles regarding its implementation, reason being the contradictory verdicts given by the Court. In the Plessy v. Ferguson case, the US Supreme Court in its verdict stated the effectiveness of the 14th Amendment. The 14th Amendment is considered as the prime tool to end racism and the Court remarked its ineffectiveness to counter the state’s own regulation.
Why is Reservation needed?
When India got its independence, the lawmakers were destined to bring certain clauses which would remove the inequality that was prevalent in the Indian Society. Therefore, Article 16 was launched along with other articles under Right to Equality, which stated “Equality of opportunity in matters of public employment”. Even though the legislation was passed, it was not implemented giving the specific information to the people. It was dealt with according to the cases that appeared in front of the courts. Court firstly dealt with The Rangachari Case of 1962. Here, the petitioner questioned upon the promotion which reservation doesn’t provide for people from SC or ST community.
Further, the Supreme Court endorsed the constitutionality of Article 16 at promotional level, which later got asserted in State of Punjab v. Hira Lal and Akhil Bharatiya Soshit v. Union of India. In yet another CA Rajendran Case of 1968, the petitioner argued upon violation of guarantees mentioned in Art 16(4) due to Office Memorandum i.e, Annexure C to the writ petition .Petitioner further questioned upon the legality of Office Memorandum and alleged the discrimination caused by it. In this case, Supreme Court observed the prohibition on discrimination caused by Article 16(2) and assured the effective implementation of Article 16(1). The Apex Court further stressed upon the usage of words in respect of any employment mentioned in Article 16(2) and thus stated to include the matters relating to employment according to Article 16(1).
The phase encapsulating big changes
The case that changed the course of the reservation was the verdict of a 9 judge bench in Indira Sawhney and Ors. v. Union of India & Ors, 1992, overruled the Rangachari judgement that promotions are contemplated under Article 16(4) and agreed upon caste to symbolise backwardness. The Supreme Courtstated the powers of States and ordered to make 27% of reservation valid for OBCs. Later, the 77th Amendment added a clause as Article 16(4A) which enabled the state to make provisions regarding promotions with, “consequential seniority”, for services in favour of the SC and ST.
Further, Ajit Singh vs. State of Punjab (1996) and Virpal Singh case (1995) the idea of consequential seniority was challenged. The above cases introduced the “catch up rule”, which was later questioned in M Nagaraj vs. U.O.I (2007). In this case, the bench endorsed the constitutional status of Reservation in Promotion and the former got solidified in Jarnail Singh vs. Lachhmi Narain Gupta (2018) case. In the Jarnail Singh case, the Court upheld the M Nagaraj Case and reiterated their affirmation regarding the reservation in promotion of SC/STs in the jobs.
Should reservation strengthen only the lower class people or it can strengthen the disabled too?
In a recent case of State of Kerala vs. Leesamma Joseph, the Supreme Court upheld the rights of disabled people and asked the state to ensure that the disabled get the reservation in promotion. Earlier, the Person with Disabilities (Equal Opportunity and Protection of Rights and full participation) Act was passed in 1995. Now, the Right of Person with disabilities Act implemented in 2016 replaced the above act.
In this case the petitioner was suffering from a permanent disability of 55% and was working as a clerk in the Police department, a job which she got after her brother lost his life during his working hours. On 1st July, 2002 she claimed to be promoted to Senior Clerk on grounds of the benefits from Consequential which Article 16(4A) provides.
But her request was denied because she had got the job on compassionate grounds which were also reiterated by the Kerala Administrative Tribunal. She appealed in the Kerala High Court and the court gave the verdict for promotion, but the state of Kerala approached the Supreme Court against the verdict of Kerala High Court. Here, the Apex Court reaffirmed the judgement of Kerala HC but referring to the Rajiv Gupta Case (2016), stated the verdict of Indra Swahney’s against the reservation which didn’t extend to PwD. The Bench also followed a judgement of January 2020 while emphasising Article 16(4). The judgement of Siddaraju vs. State of Karnataka upheld the rule of no reservation in the Indra Shwahney Case and has no application to the PwD (Persons with disability).
The Court directed the State to fulfil its obligations within 3 months. The court also noted that it doesn’t matter if the person was Pwd before or after his/her appointment, what matters is that they are entitled to all the benefits no matter whatever the circumstances are.
Why to protect the Disabled?
Reservation has always been a controversial topic. The prejudice regarding the reservation will never end unless and until we bring in laws and reforms and move forward with a changed social and inclusive mindset. This will help the country to reclaim its lost glory of a wealthy nation, and as Abraham Lincoln once said, “For the people, by the people, of the people”, which entails inclusivity in all, which is only the mantra for the success of the nation as a whole.