Reservation Laws in India

Reservation is a policy of the government that enables people from the socially and educationally backward classes, namely Scheduled Castes, Scheduled Tribes, Other Backward Classes and Economically Weaker Sections, to gain access to seats in educational institutions, both government and private, in government jobs and legislatures to some extent. Its enforceability is placed in the Indian Constitution in Articles 15, 16 and 335.

A brief history

Since time immemorial, people have been divided into castes, jatis and varnas in our country. The so-called lower caste people have always faced discrimination and inequality of opportunity. Occupation of every person was pre-decided based on the caste one was born into and no opportunity was given if one wished to change that which showcased an inequality of opportunity. A classic example of this would be not allowing Karna to portray his talents only because he was believed to belong to the Shudra caste and was often insulted because of this in the epic Mahabharat.

To bring an end to this caste-based discrimination and inequality, Dr BR Ambedkar along with the other members of the Constituent Assembly framed such provisions to ensure that members of backward communities are not left unrepresented. Reservation of seats for the members of Scheduled Castes, Scheduled Tribes and Other Backward Classes was felt necessary for their social and economic development. It was also important that their opinions and voices be heard in the legislatures because otherwise the needs and desires of the minorities might get ignored by the members of the majoritarian communities.

Article 15

Article 15 in general talks about prohibition of discrimination only on the grounds of religion, race, caste, sex, place of birth or any of them. It can be termed as a supplementary provision to the principle of equality embodied in Article 14. No citizen should be discriminated against only because they belong to a particular caste or on other grounds as mentioned in Article 15. The ratio behind Article 14 is that equals should be treated equally and unequal should not be treated equally to the equals. When people are not equal, it is inequality to treat them as equals. Therefore, following this reasoning, Article 15(4) was added to the Article by way of the 1st Amendment in 1951.

Article 15(4)[1] states that the State has the power to make special provisions for the advancement of any socially and economically backwards classes of citizens or the Scheduled Castes and the Scheduled Tribes. The amendment was a result of the judgment in State of Madras v. Champakam Dorairajan[2] in which the Supreme Court struck down the order of the Madras government to reserve seats for students in State medical and engineering colleges based on religion, caste and class to provide adequate representation to every class of students. The State contended that according to Article 46, the State should promote with special care the educational and economic interests of the weaker sections.

The Court said that “the Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights” and hence the order of the Madras government is void as it is against Article 16(2). To bring effect to the decisions of the State, Article 15 was amended to include clause (4) which can be termed as an enabling provision as the States are not obliged to provide reservations but are enabled to do so if they wish. 

Article 15(5)[3] was added in 2005 which states that the State has the power to make special provisions by law for the advancement of any socially and educationally backward classes of citizens or the Scheduled Tribes and Scheduled Castes insofar as such special provisions relate to their admission to educational institutions including private education institutions whether aided or unaided by the state other than the minority educational institutions referred to in clause(1) of Article 30.

The amendment was brought about to invalidate the decisions of the Apex Court in T.M. Pai Foundation v. State of Karnataka[4], Islamic Academy v. State of Karnataka[5] and P.A. Inamdar v. the State of Maharashtra[6]. In T.M. Pai, the Supreme Court held that “the imposition of quota in State seats in unaided professional institutions are acts constituting serious encroachments on the right and autonomy of private professional educational institutions…[which] can…not be held to be…a reasonable restriction within the meaning of Article 19(6) of the Constitution”.

It reiterated its stand in P.A. Inamdar in which it had held that “neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the state in a minority or non-minority unaided educational institution”. Therefore, the decisions passed by the Apex Court have been neutralized by this Amendment with the condition that special provisions can now be made only by law whereas, earlier it could be done merely by executive action as well.

Article 15(6)[7] was added in 2018 which states that in addition to the classes covered in clauses (4) and (5), the State has the power to reserve seats in educational institutions including private education institutions subject to a maximum of 10% of the total seats in favour of any economically weaker sections. This 10% limit stands above the 50% maximum limit set for reservation of seats for the classes mentioned in clauses (4) and (5).

Article 16

Article 16 also talks about providing equality of opportunity but, in the matters of public employment. It states that no one shall be discriminated against on grounds of only religion, race, caste, sex, descent, place of birth, residence or any of them in matters of appointment to any office under the state.

Article 16(4) empowers the state to make any provisions for reservation of posts in favour of any backward classes of citizens which in the opinion of the State are not adequately represented under its services. Therefore, which classes constitute as backward classes is a decision of the State government.

Article 16(4A)[8] was added in 1995 stating that if the States feels that the members of the Scheduled Castes and Scheduled Tribes are not adequately represented, reservations can extend to promotions [with consequential seniority][9].

Article 16(4B)[10] was added in 2001 which states that if there are any unfilled reserved vacancies in a year, these posts can be considered as a separate class of vacancies to be filled up in any succeeding years and these will not be considered as a part of the vacancies of the year in which they are being filled up and in common terms, this provision is termed as the carry-forward rule. 

Article 16(6)[11] was added in 2018 which states that in addition to the classes covered in clause(4), the State has the power to reserve posts in favour of any economically weaker sections subject to a maximum of 10% of the total posts.

Which classes constitute Backward Classes?

Both the Articles 15 and 16 provide for reservation to socially and economically backward classes but do not define backward classes. There is no difficulty in determining Scheduled Castes and Scheduled Tribes as these have been defined in our Constitution in Article 366. But the question of how to determine people as falling under backward classes has come up for consideration in many cases.

In the case of M.R. Balaji and Ors. vs. State of Mysore[12], the Supreme Court laid down two principles that caste cannot be the sole determinant for social backwardness and reservation made under Article 15(4) should be reasonable and less than 50%. According to the provisions, backwardness should be both social and educational; caste may be a relevant factor but cannot be the dominant factor.

In 1979, the government of Morarji Desai formed a commission to determine which classes are backward and what job opportunities should be provided to them. A report was submitted by the Mandal Commission and 27% posts were allocated to the members of the OBC communities under Article 16(4). This decision of the government was challenged in the Supreme Court in Indra Sawhney vs. Union of India[13] popularly known as the Mandal Commission Case. The Supreme Court held the 27% reservation to be valid and fixed a ceiling on the maximum reservation to 50%.

The creamy layer criteria which state that members of a backward class who are socially and economically forward will not be subject to reservation privileges was introduced in this case. It also stated that states are not allowed to make reservations in promotions which was nullified by the insertion of Article 16(4A) in 1995. The Court stated that “the power conferred on the State under Article 16(4) is one coupled with a duty and, therefore, the State has to exercise that power for the benefit of all those, namely, backward classes for whom it is intended”. The States have been following these criteria while reserving seats and posts for the backward classes keeping in mind an agenda to eradicate poverty and to bring such classes out of their misery by providing them with equality of opportunity. Till date, the reservation percentage for OBC’s is 27%, 15% for Scheduled Castes and 7.5% for Scheduled Tribes.

Article 335

Article 335 provides that the State is empowered to relax the qualifying marks in any examination or lower the standards of evaluation for the members of Scheduled Tribes and Scheduled Castes for reservation in matters of promotion to any class or posts in connection with the affairs of the Union or a State but at the same time, the State has to take into consideration that the efficiency of administration is not affected. In-State of U.P. vs. Dina Nath Shukla[14], the court observed that “Article 335 read with Articles 46, 38 and 16 would give the socio-economic empowerment to the Dalits and the Tribes and rule of reservation in the matter of appointment to a service or post under the State is part of the constitutional scheme as a positive facility and opportunity available to them and where it is extended to OBCs, they too get the opportunity to strive to improve excellence in a service or a post in which he or she gets an appointment.” This article conveys that a balance has to be maintained by the state when reserving posts in offices under the State.

Conclusion

In a country where a caste-based system has existed since people can recall, and still exists to some level, the debate on the need for reservation laws will always continue. The fact that reservation provisions were first implemented for a period of 10 years and this limit has increased time and again shows that there is a need to maintain these policies for the upliftment of the backward classes. The debate questions the need for reservation based on caste. It is argued that after seventy-plus years of reservation and providing equal opportunities, the classes and castes that needed upliftment have been uplifted to the level where they do not require special provisions.

The author believes that now reservation policies should be based on only economic grounds. People who have an economically weak background should be given benefits as equal to others so that they can come out of their poverty and improve conditions for themselves as well as the coming generations. It cannot be argued that people from the general category can be socially and economically backward as well. The insertion of the EWS quota for the general category is a beneficial step for people who do not come from well off backgrounds. But at the same time, with the introduction of this quota, the approx seats left for the general quota amounts to 40% of the total seats which in a way suggests an inequality of opportunity. It is true that casteism still exists in our country but that should not mean one gets to reap a benefit solely based on his caste as stated by the Apex Court in M.R. Balaji.

When a reservation is provided based on caste, people from certain castes come forward in protest to claim seats, like the Patels of Gujarat or the Jats of Haryana, even when they do not need special provisions and are not socially and economically backwards. As stated by Justice Ravindran in Ashok Kumar Thakur v. Union of India[15], “when more people aspire for backwardness instead of forwardness, the Country itself stagnates”, clearly shows that the people for whom the reservation policy has not been framed for, wish to reap its benefits.

We cannot outrightly reject the policies of reservation as many will be denied equality and consequently their fundamental rights if these are discontinued. The policies, however, need to change with the changing patterns in society and should only be based on economic backwardness. Political parties all over the country have made reservation into a vote bank and the noble idea behind it is not being followed. By way of caste-based reservations, communal differences between people have increased thereby strengthening casteism in the country. Therefore, changes in these provisions need to be deliberated upon by the Legislature so that the needy can benefit rather than the people who have already forwarded as a result of these policies. 


[1] Added by the Constitution (1st Amendment) Act, 1951, S.2.

[2] AIR 1951 SC 226: 1951 SCR 525.

[3] Ins. by the Constitution (93rd Amendment) Act, 2005, S.2(w.e.f. 20-1-2006).

[4] (2002) 8 SCC 481.

[5] AIR 2003 SC 3724

[6] (2005) 6 SCC 537

[7] Ins. by the Constitution (103rd Amendment Act), 2018.

[8] Ins. by the Constitution (77th Amendment Act), 1995, S.2.

[9] Ins. by the Constitution (85th Amendment Act), 2001, S.2.

[10] Ins. by the Constitution (81st Amendment Act), 2001, S.2.

[11] Ins. by the Constitution (103rd Amendment Act), 2018.

[12] AIR 1963 SC 649.

[13] AIR 1993 SC 477.

[14] AIR 1997 SC 1095, 1097.

[15] (2008) 6 SCC 1.

Indu Kumari from GGS Indraprastha University, New Delhi

“I don’t let my mind create limitations for me.”

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