By Kyrsoibor Pyrtuh
The ongoing VPP led agitation to review the Reservation Policy in the State seems not to be ending anytime soon. Therefore, it is important to lay bare critical and historical materials pertaining to the subject matter. Fifty years ago, when the State framed and resolved to adopt the current formula of reservation policy, (which is 40% in favour of Garos, 40% for Khasi-Jaiñtia community, 5% for other STs/SCs who are indigenous to the State and 15% for the general category), it did not do so in a vacuum. Rather the State’s political executive was informed by the provisions of the Constitution of India and rulings of judiciary on the subject. In this article I will highlight on the two significant case laws to which the Government of Meghalaya had referred to and relied on during the formulation of Reservation Policy in 1972.
In India the concept of reservation is not only wide but it is complex and sensitive. In the current situation in Meghalaya, different people understand reservation differently and the matter is also sensitive as it involves two different major tribes with each making competing claims. The Constitution, which is the source of all reservation laws/policies in the country, provides for the establishment of a just and equal society which is free from injustices, discriminations, exploitations and that no one is left behind. The basis of reservation is to provide adequate representation of Schedule Castes, Scheduled Tribes or any other socially and educationally backward classes or economically weaker sections.
The Constitution of India allows reservation in admissions to educational institutions and reservations in posts and appointments in Government offices as well and ever since the Constitution of India came into force on January 26, 1950, several laws/policies on reservation were framed by various State and Union Governments. At the same time many of these reservation laws or policies were scrutinized by different High Courts and the Supreme Court of India which has in effect produced case laws. Perhaps, there are two important case laws on reservation which were discussed and referred to during the formulation of the Reservation Policy in Meghalaya. They are, (i) The General Manager Southern Railway versus K. Rangacharry 1962 and (ii) M.R Balaji versus State of Mysore 1963.
In 1979, long before the Right to Information Act 2005 was passed, Bah L. Gilbert Shullai, founder of the Shillong Records Collection Centre wrote to the Secretary to Government of Meghalaya, Personnel and Administrative Reforms and sought information on the Government’s Resolution on Reservation and the subsequent amendments. In the letter dated November 3, 1979, he stated, “I am…to request you to kindly furnish a copy of Government Resolution No.PER.222/71/138 dated January 12, 1972 as amended up-to date”. Perusing the documents and information on the subject which were provided in response to the letter, it is evident that there are two important case laws, i.e, the General Manager, Southern Railway and M.R Balaji whereby the Supreme Court gave its rulings in the year 1962 and 1963 respectively, which guided the Government to formulate its Reservation policy. The following are the footnotes of these case laws:
“Allowing an appeal by the General Manager, Southern Railway, against the judgement of the Madras High Court (on a petition by Shri K. Rangacharry, a court inspector employed in class III of Railway service) which held that the circulars issued by the Railway Board making reservation for selection posts in class III service contravened Article 16 of the Constitution, the Supreme Court, has by majority judgement of three to two, upheld the power of the Union Government under Article 16(4) of the Constitution to make reservations for Schedules Castes and Schedules Tribes in services not only at the stage of initial appointments but also for selection posts.
Article 16 (1) of the Constitution guarantees to citizens equality of opportunity in matters relating to employment or appointment to any office under the State and Article 16 (4) empowers the State to reserve appointments or posts in the services in favour of any backward class of citizens when it is of the opinion that they are not adequately represented in services. Mr. Justice Gajendragadkar, delivering the majority judgement, observed that the word “posts” used in Article 16(4) was not superfluous but served a very important purpose. Therefore… “the power of reservation which is conferred on the State under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts”.
His Lordship said that the condition precedent for the exercise of powers conferred by Article 16 (4) was that the State must be satisfied that any backward class of citizens was not inadequately represented in the services. This condition precedent might refer to numerical inadequacy of representation in services or even to qualitative inadequacy of representation. The advancement of the socially and educationally backward classes required not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts as well.”
The other important case law which had emerged from the apex court is that of M.R Balaji’s case of 1963 in which the Supreme Court set the 50% reservation. This case law was also referred to by the Government of Meghalaya and the issue in question is the limit or reasonableness of reservation. It is quoted that, “… but if under the guise of making special provision, a State reserves practically all the seats available in all colleges, that clearly would be subverting the object of Article 15(4) …”
The two major contentions in the M.R Balaji’s case were, whether reservation was in accordance with Article 15(4) and whether the reservation of 68% of the seats was reasonable. According to Akshita Jain, although “the case of M.R Balaji versus State of Mysore had been overturned in many aspects by later judgements, but it had generated the most remarkable discussions over reservations where the Supreme Court answered the most prevailing questions relating to it and interpreted the provisions invoked by the Governments to provide reservation. The court in this case, agreed that reservation should be essentially provided to the weaker sections of society in order to uplift them but at same time, the court clarified that it should not be done by cutting the interest of remaining sections of society…It also made clear that reservation must not exceed 50% in any case, or else that would be unreasonable. But how much less than 50% the reservation has to be decided in accordance with the facts and circumstances…”
The above case laws are indicative of the fact that reservation is meant to provide adequate representation and to uplift or advance the weaker sections of society. We the people, together and through dialogue, can explore ways and means to make reservation work best for the sections of society it is meant to serve, but not at the cost of Constitutional morality.