Foundation Batch - Reading Material and Notes

Jatin Gupta

EVOLUTION OF RESERVATIONS IN INDIA

RESERVATIONS IN LEGISLATURES

Originally in the constitution reservations were provided to the members of SCs and STs
communities in the Lok Sabha and State Legislative Assemblies. They were provided only
for a period of 10 years, later on by subsequent amendments the period was extended.
Such reservations were provided in proportion to the population of the SCs and STs.

RESERVATIONS IN GOVERNMENT JOBS

According to the provision of Article 16(4) the State is enabled to provide reservations for
backward classes of citizens in government jobs. As a result reservations were provided
in government jobs for SCs and STs at both central as well as state level. These
provisions were made with no time limit unlike the reservations in legislatures. Such
reservations were not extended to the OBCs till the 1990’s.

Reservations under Article 16(4) were made subject to provisions of Article 335. According
to it, the efficiency of administration should not suffer as a result of providing
reservations to SCs and STs. There is no specific definition of the "efficiency of
administration" hence is open to interpretation of the courts.

Champakam Dorairajan vs. State of Madras case:

"Communal Order" - According to an order made in 1927 by Madras govt seats were to
be reserved in educational institutions in the state of Madras. The Communal Order of 1927
was an order issued by the Madras government that reserved seats in educational
institutions in the state of Madras for certain communities.

The petitioner contended that Article 15(1) and Article 29(2) have been violated by the
communal order of the Madras govt.

The Govt argued that Article 46 imposes a duty on the State to make special provisions in
the favor of SCs, STs, and backward classes of Citizens in India.

The court ruled that Fundamental Rights shall always prevail over the Directive
Principles of State Policy. Thus, the Court declared caste and religion-based
reservations unconstitutional.

The Court struck down the communal order and declared that reservations on the basis
of caste and religion are violative of the FRs under Articles 15(1) and 29(2). In response to
this, the Parliament enacted the 1st Constitutional Amendment Act 1951 and added
Article 15(4) in the Constitution as an exception to Article 15 as well as Article 29. As a
result several states made the reservations in favor of SCs, STs, and OBCs, as well. The
central govt provided reservations in central educational institutions in favor of SCs, and STs,
but not to OBCs.

BP MANDAL COMMISSION

In 1978 BP Mandal Commission was set up by the president of India under Article 340 of
the constitution.
 Foundation Batch - Reading Material and Notes
Jatin Gupta
This commission was required to -

● Investigate the conditions of backward classes of citizens in India.

● Provide recommendations for the advancement/upliftment/well-being of these
classes of citizens.
● Lay down the criteria to identify the OBCs.
● Provide recommendations to improve the conditions of socially and educationally
backward classes of citizens.

The commission used caste as a basic identifier to group the citizens. Backwardness of
various castes was judged on the basis of an elaborate criteria that included social,
economic and educational indicators.

The commission noted that OBCs account for 52% of India's population and should
therefore be provided 27% reservation in govt jobs.

The figure of 27% was determined in order to avoid violating the 50% rule set by the court
in the M.R. Balaji vs. State of Mysore.

The commission used extensive criteria of 11 social and educational indicators to

determine the backwardness of specific communities.

Aftermath of Mandal Commission:

● The V.P. Singh govt issued an executive order in 1990 to extend the reservation to
the OBCs in central govt jobs. This would be in addition to 22.5% of reservations for
SCs and STs.
● Widespread protests broke out throughout the country and the executive order was
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widely opposed. A subsequent order was passed by the next govt to categorize the
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OBCs into advanced and backward. Additionally extending the reservations up to

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10% for the economically backward classes not belonging to SC, ST, and OBC
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category.
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● These two orders were challenged in the Supreme Court in the Indira Sawhney
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Case.
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● A 9-judge bench pronounced an elaborate verdict that formed the basis for the
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future of reservations in India.

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Indira Sawhney vs Union of India

1. Whether the reservations violative of the principle of equality and therefore basic
structure of the Constitution?

● The apex court held that reservations are not violative of the principle of equality and
are therefore constitutionally valid.
● The court stated that reservations are an exception to the principle of equality and
they give effect to the principle of equal protection of laws.

2. Is an executive order alone enough to extend the reservations or does it require a

law of the legislature?
 Foundation Batch - Reading Material and Notes
Jatin Gupta
● The court stated that Article 16(4) contains within it all that is required for extending
the reservations in the govt jobs and it does not require a law of the parliament.

3. Aren't reservations anti-merit in nature?

● The court stated that reservations are not anti-merit in nature as merit itself is a
subjective concept, rather they promote inclusivity in the society.
● The court stated that these reservations are not equivalent to communal reservations
and it may happen that some people belonging to reserved categories may find a
seat on the basis of their own merit in the un-reserved category.
● In that case, the seat occupied would not be counted against the quota reserved for
the backward classes but they would be treated as open-category candidates.

4. Can the 50% limit provided in earlier cases be breached?

● The court stated that the 50% rule would be sacrosanct and could be violated only in
exceptional circumstances.
● For example, to provide reservations for far-flung areas of the country.
● The Supreme Court in Leela Prasad Rao vs. State of Andhra Pradesh held that
govt can breach the 50% rule to some extent but extreme caution should be
exercised in such cases and the govt should be able to justify breaching the quota
limit.

5. Are caste-based reservations violative of Article 16(2)?

● The court held that the Mandal Commission has identified backward classes on the
basis of detailed criteria which include, social, economic, and educational indicators.
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Therefore it would be wrong to say that reservations have been provided on the basis
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of case alone.
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6. Can reservations be provided on the basis of economic criteria alone?

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● The court held that economic criteria cannot be the sole basis for determining
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backwardness.Reservations on the basis of economic criteria cannot do away with

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social inequalities.
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● If high caste poor are provided reservations along with the OBCs then all the seats
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would be monopolized by the high caste poor.

7. Can reservations be provided in case of promotions as well?

● The court held that reservations should not be allowed in promotions and if they
are allowed it would result in injustice and inefficiency.
● The reserved candidates would feel that they need not compete with others but only
among themselves and as a result, they may not feel inclined to do work and excel
as they would think their promotion is assured.
● This would create a sense of frustration and bitterness among the others in the office.
● The court stated that "crutches can not be provided to an individual throughout
one's career".
● The reservations in promotions would also affect the idea of efficiency under Article
335 of the Constitution.
 Foundation Batch - Reading Material and Notes
Jatin Gupta
8. Can the vacancies in the present year for the reserved category be carried forward
to the next year?

● The court stated that "carry forwarding of the vacancies is possible or is allowed but
the overall limit of 50% should not be breached.

9. How should inclusion/exclusion under the OBC category be decided?

● The court stated that a "decision with respect to this matter should be taken by an
independent statutory commission".
● This commission would be formed under the law of the parliament so that it can
make decisions independently of the government

10. Are there any exceptions to the reservation policy?

● The court stated that with respect to certain positions merit alone should be criteria
for appointment.
● For example, in the armed forces, nuclear scientists at BARC, etc. there should
be no reservations.
● The court in Preeti Shrivastava vs. State of MP held that reservations cannot be
designed in such a manner that they undermine public interests.
● Therefore in certain super speciality positions such as postgraduate seats in
medical colleges, reservation should be provided only to a certain extent.

11. Should reservations be provided equally to all the members of the reserved
community?

● The court introduced the idea of a creamy layer and held that reservations under the
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OBC category should be provided to only those who pass the "means test".
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● As per the court creamy layer refers to all those sections of the OBC community
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who are socially, economically, and educationally advanced as compared to the rest
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of the members of that community.

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● They constitute the advanced sections of the community and end up appropriating all
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the benefits without allowing them to reach the truly backward section.
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● The court therefore asked the govt to fix the norms of property and income to
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determine the creamy layer.

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● In 1994 DoPT issued a circular laying down the guidelines for the identification of
creamy layer by the govt.

PARLIAMENT'S RESPONSE TO INDIRA SAWHNEY CASE:

● 77th CAA 1995 - added Article 16(4A) - allows reservations in promotions but for
only SCs and STs if they are inadequately represented.
● 81st CAA 2000 - added Article 16(4B) - allowed the state to treat backlog
vacancies as a separate class of vacancies when carried forward to the next year
so that they are not considered along with reserved vacancies of subsequent years
to determine a 50% limit on reservations.
● 82nd CAA 2000 - added a proviso to Article 335 in response to the court's judgment
in Vinod Kumar vs. Union of India.
 Foundation Batch - Reading Material and Notes
Jatin Gupta
● This proviso allows the govt to relax the qualifying max or to lower the standards of
evaluation for the SC/STs in matters of promotion.
● 85th CAA - added the word "Consequential Seniority" to Article 16(4A).

M. Nagaraj vs. Union of India 2004

● In this case, the constitutional validity of the 77th, 81st, 82nd, and 85th CAA was
brought under a challenge.
● The court upheld all the amendments and stated that reservations in promotions
are not a matter of right, rather the Constitution has only provided enabling
provisions for the same.
● The court further stated that while providing reservations for SCs/STs the
following conditions must be satisfied -
● 1. Quantifiable data should be provided to justify the inadequacy of representation
at different levels of govt.
● 2. Quantifiable data should be provided to prove the backwardness of SC and STs.

Jarnail Singh vs. Lacchmi Narain 2018:

● The court held that the judgment in M. Nagraj was faulty and there was no need to
collect quantifiable data to prove the backwardness of SC and STs.
● The court added that the concept of the Creamy layer should be extended to
the SC and STs as well and the state should consider the introduction of such
changes in its policy.

RESERVATION IN EDUCATIONAL INSTITUTIONS:

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● Even though the center and the state govts continued to provide reservations to
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SCs and STs in educational institutions as per Article 15(4), a few states extended
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this reservation to the OBCs in state-run institutions.

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● The Apex Court's decision in 2003 T.M. Pai Foundation v Union of India, held
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that state-made reservation quota can't be extended to privately run educational

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institutions.
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● The 93rd CAA, 2005, which added Article 15(5) stated that - the state can make a
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law to provide reservations for SCs, STs, and SEBCs (Socially and educationally
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backward classes) in educational institutions including private educational

institutions whether aided or unaided by the state.
● Such reservations would not extend to minority educational institutions under
Article 30(1). In PA Inamdar Case 2004, the court held that these institutions are
already serve a social purpose by providing education to the minorities.
● The parliament subsequently passed the Central Educational Institutions
Reservation Act (CEI Act) 2005, which extended the reservation to the OBCs in
center-run educational institutions. Several state legislatures also passed laws in
this respect. All these Acts were challenged in the court in the Ashok Thakur vs.
Union of India case, 2008. The court upheld the validity of the 93rd CAA and the
CEI Act. It was also observed that since the issue of reservation in private
educational institutions has not been raised in this case, the court shall decide
upon its constitutionality in an appropriate case later.

RESERVATIONS FOR ECONOMICALLY WEAKER SECTIONS

 Foundation Batch - Reading Material and Notes
Jatin Gupta
● 103rd CAA, 2019 extended reservations under Article 15(6) and 16(6) to the
economically weaker sections from the unreserved category. According to them
the state can provide a maximum of 10% reservation in addition to existing
reservations for EWS belonging to non SC, ST and OBCs.

Janhit Abhiyan Vs Union of India, 2022:

The petitioners challenged the constitutional validity of the 103rd CAA on the following
grounds:

● Economic criteria can not be the sole determinant in allowing reservations for a
particular section of society and therefore violates the basic structure of the
Constitution.
● Exclusion of SEBCs from EWS reservations is discriminatory in nature and
therefore violates the principle of equality.
● The defined 10% upper limit reservation for EWS directly breaches the 50% cap
set by the court in the Indra Sawhney case and goes against the ethos of
reservation.

Majority judgement of the court

● The majority of judges held that poverty is an adequate marker of deprivation and
EWS is a separate and distinct category not barred from reservations under the
constitution.
● EWS reservations are not violative of the basic structure of the constitution and
there cannot be a competition of claims for affirmative action based on
disadvantages. In other words reservations can not be denied to EWS because
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they do not suffer from other disadvantages.

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● The court stated that the 50 % limit can be breached in extraordinary situations as
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held by the bench in the Indra Sawhney case. Also additional reservations do not
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affect the reservations provided to SEBCs under 15(4), 15(5) and 16(4) and such a
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breach is allowed.
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● The Bench also relied upon constitutional provisions such as Art 38 and Art 46 that
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empower the state to make provisions for economically disadvantaged sections.

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● And therefore achieve the goals of economic justice.

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Minority Judgement of the court

● The law that gives benefits only based on economic criteria and does not give
importance to other factors violated the basic idea of justice in the constitution.
● Exclusion of SEBCs from the EWS category is unconstitutional as even the SEBCs
are poor and the intention of constitution-makers to provide them reservations
was based on historic discrimination against such classes.
● Denying them reservations on economic criteria fails to recognise their economic
deprivation
● Breaching the 50% limit would turn an exceptional provision into a general rule.