Recently Union Cabinet took the big decision of providing 10% reservation to the economically backward people of the general category in jobs and the higher education. Providing reservation jobs with respect to the government jobs and in higher education with respect to the quota in universities, educational institutions etc. The thing which needs to be focused here is that special provisions is for the economically backward people of the general category. So a question arises now what would happen with the reservation earlier given to the SCs, STs, OBCs etc.? The answer is that the current decision of the NDA government will have no impact on the earlier reservations. So the backward people of the communities of SCs, STs etc. will continue to have reservation. So the scenario will be such that the existing 50% reservation would now be changed to 60% limit. Now going through our Indian constitution in part 3 of it where article 15(1)(2) clearly states that State will not discriminate any citizen on the ground of religion, race, caste, sex and place of birth or any of them. But Article 15(3) states that State can make special provisions for women and children. Part 3 of our indian Constitution talks about the fundamental rights whereas part 4 of the indian constitution talks about the directive principles of state policy. Article 46 of part 4 of the Indian Constitution gives State to make special provisions for SC’s or ST’s or weaker sections of the society. Now the first thing which needs to be recognised is that weaker sections of the society mentioned under Article 46 does not specifically define weaker sections which means the weaker sections can be people with disabilities, people who are financially very weak etc. So it should be specifically recognised about which weaker sections article 46 is talking about. Now the second thing which should be emphasized is that article 46 is talking about State directions towards making special provisions for SC’s or ST’s or weaker sections of the society. So article 46 talks about the State making special provisions for the caste of schedule caste. But going back to article 15(1)(2) clearly states that state will not discriminate any citizen on the grounds of religion, race, caste, sex or place of birth. So the question now arises is Article 46 violation of Article 15(1)(2)? As article 15(1)(2) is talking about that state will not discrimiante on the basis of caste but article 46with the mention of schedule caste expressly states that state will make special provisions. So who is more powerful part 3 or part 4 of the Indian Constitution? So the answer for this question came in Champakam Dorairajan v. State of madras 1951 where court said that in a conflict between part 3 and part 4 of the Indian constitution part 3 will always prevail. So it means no special provisions will be mde for the citizens. But in 1951 1st constitutional amendment was passed which inserted article 15(4) which states that state can make special provisions for SC’s, ST’s and backward classes which are socially and educationally backward. Even in the famous mandal commission case of Indira Sawhney v. Union of India 1991 article 15(4) had not struck down on the basis that it is based upon the prinicple of equality which is the basic structure of the Indian Constitution.
This article is authored by Munis Nasir, student of Bachelor of Laws (LL.B) (Hons.) at Jamia Hamdard University, New Delhi.
Also Read – Reservation – An Issue In India.
