below 50% reservation ambedkar rulling

 

                Ambedkar on reservation that it should be in minority of seat

Ambedkar clarified that reserve seat must be in minority and open seat shoudd be more than reserve seat

So it is ambedkar not supreme court who has made ruling in constitunal assembly  that reserved seat must be less than 50 %  otherwise it will be violation of constitution

AMBEDKAR 30 NOVEMBER 1948

 

Of the three points of view, the first is that there shall be equality of opportunity for all citizens. It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality of opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative--and it ought to be operative in their judgment to its fullest extent--there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have. Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a `proper look-in' so to say into the administration. If honourable Members will bear these facts in mind--the three principles, we had to reconcile,--they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now--for historical reasons--been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent. of the total posts under the State and only 30 per cent. are retained as the unreserved. Could anybody say that the reservation of 30 per cent. as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree

Even ambedkar suggested that if any govt violates the principal of equal opportunity and does excessive reservation then people should go to court and court will quash it

 

AMBEDKAR 30 NOVEMBER 1948

"What is a backward community"? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government. My honourable Friend, Mr. T. T. Krishnamachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer. Personally I think it would be a justiciable matter. If the local Government included in this category of reservations such a large number of seats, I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner. Mr. Krishnamachari asked: "Who is a reasonable man and who is a prudent man? These are matters of litigation". Of course, they are matters of litigation, but my honourable Friend, Mr. Krishnamachari will understand that the words "reasonable persons and prudent persons" have been used in very many laws and if he will refer only to the Transfer of Property Act, he will find that in very many cases the words "a reasonable person and a prudent person" have very well been defined and the court will not find any difficulty in defining it. I hope, therefore that the amendments which I have accepted, will be accepted by the House. Mr. Vice-President: I am now going to put the amendments to vote, one

by one

this ruling came after thiis objection

30 november 1948

Shri T. T. Krishnamachari: Mr. Vice-President, Sir, Iam afraid I am in a position of disadvantage, coming as I doafter Mr. Munshi, whom the House knows as a very learnedlawyer. I now see that his technique in advocacy is toconfuse the judge, as--if I had heard him aright--he musthave confused the minds of those Members of this House whohad some doubts in regard to the provisions of article 10.Sir, I was reading recently in a newspaper the comments onthis Constitution by a celebrated author ity--Prof. IvorJennings. Vice-Chancellor of the Ceylon University--and hecharacterises this chapter of fundamental rights as aparadise for lawyers. And, as a piece of loose drafting,article 10 takes the palm. My own view, if I may bepermitted to state it, is that this article had better notfind a place in this Chapter on Fundamental Rights.

Let me take clause (1): "There shall be equality ofopportunity for all citizens in matters of employment underthe State." What class of citizens? Literates? Illiterates? Could an illiterate file a suit before the Supreme Court alleging that he has been denied equality ofopportunity? This is not my own view. This is a statement of the view which I found expressed in Professor Jennings'criticism.

I now move on to clause (2). I am afraid this House hasbeen put to a lot of trouble merely because of the attemptto accommodate my Honourable Friend Shri Jaspat Roy Kapoorby including the word `residence' in this clause after theword `birth'. This has been beginning of all the trouble. Wehave had an amendment by Shri K. M. Munshi and another byShri Alladi Krishnaswami Ayyar. Is it at all necessary toinclude the word `residence?' I put it to the House that it is not necessary, because if there is discrimination becauseof `residence' as there may be, you are not going to coverit up by putting it in here and taking it out in clause 2(a).

An Honourable Member: Delete 2 (a) then.

Shri T. T. Krishnamachari: That is a matter for theHouse. But I suggest to the House that we can be impartialin this matter. We shall deny Mr. Jaspat Roy Kapoor theright to put in `residence' and we shall deny Shri AlladiKrishnaswami Ayyar the occasion to bring in an explanatorysub-clause which would whittle down the concession given asmuch as possible.

Now let us turn to the wording of the particularamendment moved by Shri Alladi Krishnaswami Ayyar on whichmy Honourable Friend Mr. Munshi dilated at length. Sir, as Isaid before, I am not presuming to give any advice on thematter. Let us see what the Parliament is going to do? Is itgoing to pass a comprehensive law covering the needs of allthe States, all the local bodies, all the village panchayats(which will also be States under the definition in Article7) and all the universities? Or, is it going to enact freshlegislation as and when occasion arises and as and when aparticular local body or university or village panchayatasks for special exemption? Nothing is known as to what isnaturally contemplated. We do not know what procedure isgoing to be laid down for this purpose, and this clause isso beautifully vague that we do not know whether Parliamentis at all going to be moved in the matter for acomprehensive piece of legislation. Even then what is thetype of legislation it could enact?

The proposal of my friend Shri Jaspat Roy can benullified if Parliament decides that there should beresidence of at least ten years before a person can qualifyfor an officer in the area. Or, is Parliament going to putdown one year or is it going to cover the position ofrefugees by putting in six months or nothing at all? My ownview is that, instead of putting in a clause like 2

(a)which is so vague,--the doubt raised by my friend Mr. Kamathis quite right--we can safely trust the good sense ofParliament. We are leaving the whole thing to the good senseof Parliament, the legislatures, the Supreme Court and theadvocates who will appear before that Court when we enactthis Constitution in the manner in which it has beenpresented to us. I am afraid there must be some region whereyou must leave it to the good sense of some people, becausewe are here trying to prevent the good sense of people fromnullifying the ideas which we hold today.

Sir, the amendment of Shri Alladi Krishnaswami Ayyarsays: ".....under any State for the time being specified in the First Schedule or any local or other authority withinits territory, any requirement as to residence within thatState prior to such employment or appointment." I cannotreally understand where any State comes in here, even afterhearing the very able advocacy and admirable advocacy ofShri Munshi in support of the amendment. I suggest that boththe ammendments be dropped. If any particular Statedisregards our views and insists on residentialqualification it would not matter very much.

I now come to clause (3). Quite a number of friendsobjected to the word `backward' in this clause. I have nodoubt many of them have pointed out that when this House took a decision in this regard in thisparticular matter on a former occasion the word `backward'did not find a place. It was an after-thought which thecumulative wisdom of the Drafting Committee has devised for the purpose of anticipating the possibility of thisprovision being applied to a large section of the community.

May I ask who are the backward class of citizens? Itdoes not apply to a backward caste. It does not apply to aScheduled caste or to any particular community. I say thebasis of any future division as between `backward' and`forward' or non-backward might be in the basis of literacy.If the basis of division is literacy, 80 per cent. of ourpeople fall into the backward class citizens. Who is goingto give the ultimate award? Perhaps the Supreme Court. Itwill have to find out what the intention of the framers wasas to who should come under the category of backwardclasses. It does not say `caste.' It says `class.' Is it aclass which is based on grounds of economic status or ongrounds of literacy or on grounds of birth? What is it?

My honourable Friend Mr. Munshi thinks that this wordhas fallen from heaven like manna and snatched by theDrafting Committee in all their wisdom. I say this is aparadise for lawyers. I do not know if the lawyers who havebeen on the Committee have really not tried to improve thebusiness prospects of their clan and the opportunities of their community or class by framing a constitution so fullof pitfalls.

Shri K. M. Munshi: Well, my honourable friend canattempt to become a lawyer.

Shri T. T. Krishnamachari: I am afraid I may have to,when people like Mr. Munshi desert the profession for othermore lucrative occupations. If my friend wants me to saysomething saucy I can tell him that I could attempt that anddo some justice to it.

Shri K. M. Munshi: You can, I know.

Shri T. T. Krishnamachari: I must apologise to you, Mr.Vice-President, for carrying on a conversation with Mr.Munshi notwithstanding the fact that he has beenprovocative. Anyhow the subject is not one which merits suchsallies.

Sir, coming back to the merits of clause (3) my feelingis that this article is very loosely worded. That the word`backward' is liable to different interpretations is thefear of some of my friends, though I feel that there is noneed for such fear, because I have no doubt it is going to be ultimately interpreted by the Supreme author ity on somebasis, caste, community, religion, literacy or economicstatus. So I cannot congratulate the Drafting Committee onputting this particular word in; whatever might be theimplication they had in their mind, I cannot help feelingthat this clause will lead to a lot of litigation.

Sir, before I sit down I would like to put before theHouse a suggestion not to block the issue further either byadmitting the amendment of Shri Jaspat Roy Kapoor or, as asequel to it, the amendment of Shri Alladi Krishnaswami