IS GENERAL RESERVATION A ‘JUMLA’? BJP WITHSTANDING INDRA SAWHNEY

-

SHORT NOTE

A secular, unified and caste-less society is a basic feature of the Constitution
      -Shri Nanabhoy Palkhivala

The 103rd Constitutional Amendment Act appears to withstand the test of constitutionality.
The President of India, Shri. Ram Nath Kovind on Saturday dated 12th January, 2019 gave his assent to THE CONSTITUTION (ONE HUNDRED AND THIRD AMENDMENT) ACT, 2019 (hereinafter ‘Act’). The Act amends the Indian Constitution inserting two new Articles i.e., 15(6) and 16(6) of the Constitution. This Act aims to render special provision for the advancement of ‘economically weaker section’ (hereinafter ‘EWS’) of citizens other than SC, ST and OBC relating (i) their admissions to educational institution (including aided and unaided institution by the state and excluding minorities educational institution covered under Article 30(1) of the Constitution) and, (ii) reservation of appointments or posts, both subject to a maximum of 10%. Reacting to the special provision/reservation of 10% quota, the legal experts raised apprehension concerning its litmus test of constitutionality.

The disputed issue which emerges from Indra Sawhney v Union of India, AIR 1993 SC 477 (hereinafter ‘judgment’) can be broadly classified into two categories (i) the 50% ceiling limit (ii) Sole ‘economic criteria’ for reservation. The first issue is mentioned under ¶¶ 93-96 of the judgment. And, the Apex Court has already stated that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4), and also restricting itself exclusively to the vertical reservation. The second issue can be traced at ¶ 90 of the judgment. And, the Apex Court has said, ‘a backward class cannot be determined only and exclusively with reference to economic criterion.’ As well as in the second issue the Apex Court has only dealt economic criterion with respect to backward class. However, both the issues are only restricted to Article 15(4) and 16(4) of the Constitution. It entails that the cap of 50% is merely for the special provision/reservation of backward class. The insertion of new articles thereby, making EWS entirely a new class, distinct from backward class altogether. Therefore, the judgment won’t be applicable to the amended article i.e., 15(6) and 16(6). Hence, both the issues get dissolved and, the judgment will not affect the special provision/reservation for EWS.

I would like to conclude by enunciating the outlook of the Apex Court on the reservation for the economically backward section. Nowhere Apex Court has considered the constitutionality of providing reservation for the economically backward section as an independent class.

The real hurdle according to my legal understanding would be:

1) Whether there is a reasonable classification between SC, ST & OBC economical weaker section and Other economical weaker section?

2) Whether ‘other indicator of economic disadvantage’ will come under the purview of judicial review?

3) Whether the 103rd Constitutional Amendment Act is against the basic structure? [Reservation -Based on Origin of Article 15 and 16- Whether was restricted to backward class or governments can make a class other than backward class]

4) Whether fundamental rights can be imposed against unaided institution?



(For further information, please be my guest at lawyer.akt@gmail.com)

-Abhishek Tripathi


Popular posts from this blog

STEP BY STEP ARBITRATION PROCEDURE- STAGES OF ARBITRATION - LAW AND PRACTICE OF ARBITRATION

-
Image
STAGES OF ARBITRATION - STEP BY STEP PROCEDURE The arbitration proceeding will only begin when the parties to the contract agree to settle all/ certain existing/future dispute through arbitration. Arbitration is a process of resolving all/certain existing/future disputes before independent and impartial individual(s), who serves as an arbitrator(s). The arbitration/ arbitral proceedings begin when the notice to arbitrate or arbitration notice is delivered to the opponent, which is sent by the claimant. Section 21 of the Arbitration and Conciliation Act, 1996 (hereinafter 'Arbitration Act') states the ' Commencement of arbitral proceedings ' as ' Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent '. [See Y. Parthsarthy v. G.M., Railways Electrification, Allahabad, 1997 (2) Arb LR 347 ;
Read more

A COMPLETE UNDERSTANDING OF APPOINTMENT OF ARBITRATOR: SECTION 11 OF ARBITRATION ACT

-
Image
I. INTRODUCTION The Arbitration and Conciliation Act, 1996 (hereinafter 'Arbitration Act') confer absolute authority to the parties to determine the procedure for appointing the arbitrator/arbitrators. In the event of default, 'the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court will come into play. In 2015, the parliament has amended and transferred the power u/s. 11 from Chief Justice of India and Chief Justice of High Court to Supreme Court and High Court respectively. This entire process of appointment of arbitrator/arbitrator, either by parties or by court comes under the purview of Section 11 of the Arbitration Act. SECTION 11. APPOINTMENT OF ARBITRATOR _______________________________ 1 The court u/s. 11 means Supreme Court for International Commercial Arbitration and the High Court for Domestic Arbitration. II. APPOINTMENT OF ARBITRATOR BY PARTIES Sub-sections (2) and (3) of section 11 grants free
Read more

SETTING ASIDE AN ARBITRAL AWARD IN INDIA UNDER SECTION 34 OF THE ARBITRATION ACT

-
Image
I. INTRODUCTION The very essence of Arbitration and Conciliation Act, 1996 (hereinafter ‘Arbitration Act’), is to boil down the supervisory role of courts in the arbitral process. The Arbitration Act intended to reduce the scope of judicial interference with an arbitral award as well. The ambit of courts power is merely restricted to set aside the arbitral award on certain grounds specified in the Arbitration Act. It is blasphemous to use other enactments or rules to set aside the arbitral award. The court cannot act as an appellate authority over and above interfere on merits of an arbitral award (except ‘public policy’ issues). The arbitral award can ‘only’ be set aside by filing an application for setting aside the arbitral award in accordance with sub-sections (2), (2A) and (3) of Section 34 of the Arbitration Act. The application of setting aside arbitral award (including interim award) is dealt in chapter VII of the Arbitration Act under the head ‘Recourse Against Arbitral A
Read more