Reservation

Reservation 

**Author: Kumar Gaurav Vimal,  a student of Law Centre 1, Faculty of Law,  University of Delhi 

Introduction 

Recently, the Government of the State of Bihar released findings of the Caste Survey 2023 which revealed that Other Backward Classes (OBCs) and  Extremely Backward Classes (EBCs) together constitute 63 % of the state’s total population. The survey data will also reopen the debate over the 50% ceiling on reservation imposed by the Supreme Court in its landmark ruling in Indra Sawhney v Union of India (1992).

This article is an overview to this reservation policy and focuses on the journey of reservation with some important articles of Constitution of India, The Mandal Commission and some landmark judgements given by the Supreme Court regarding this policy.

Important Articles of Constitution 

• Article 14: Equality before law 

“The State Shall not deny any person equality before the law or the equal protection of the laws within the territory of India.”

Art. 14 does not mean that all laws must be general in character or that the same laws should apply to all persons as all persons are not, by nature, attainment or circumstances justify such treatment. In fact, identical treatment in unequal circumstances would amount to inequality. That’s why Art. 14 allows reasonable classification of persons, objects  and transactions by the legislature for the purpose of achieving specific goals.

• Article 15: Prohibition of discrimination against citizens 

• 15(1): “The state shall not.           discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

• 15(3): “Nothing in this Article shall prevent state from making any special provision for women or children.” 

Thus, reservation of seats for women in a college does not offend against Art. 15 (1). Provisions can be made for maternity benefit or free education for women and children. Art. 15 (1) – (3) would imply that state can discriminate in favour of women against men but not vice versa. 

• 15(4): “Nothing in this article shall prevent the state from making any special provision for advancement of any Socially and educationally backward classes of citizen or for SCs or STs. 

• Article 16: Equality of opportunity in public employment.

• 16(1): “There shall be equality of opportunity for all citizens in matters relating to employment and appointment to any office under the state.”

• 16(4): “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

The Mandal Commission 

This Commission was appointed to investigate the condition of Socially and educationally backward classes. In the report by the commission it was said that excluding STs/SCs and Other Backward Classes (OBCs) constitute nearly 52%of the population and therefore 27% government jobs could be reserved for them so that the total reservation of all (STs/SCs/OBCs) amounts to 50%.

In 1990, the central government announced 27% reservation. In 1991,it was modified: firstly the poorer sections among OBCs will get preference (creamy layer) and then 10% for others. 

The Constitutional validity of the memorandum was considered by a bench of 9 judges in the case of  Indra Sawhney v/s Union of India. 

Indra Sawhney v/s Union of India (1993)

In this case, the scope of Article 16(4) has been examined by the Supreme Court.  The court by 6:3 majority upheld the decision of Union government to reserve 27% government jobs. For OBCs, the provided creamy layer among them were eliminated and the reservation was only confined to initial appointments and not promotions, and the total reservation shall not exceed 50%.

However,  the SC struck down 10% reservation for Economically Backward Classes(EBCs).

Important Amendments 

• 77th Amendment: This amendment added a new clause 4A to Article 16 which provided reservation in promotions in government jobs in the favour of STs and SCs. This amendment nullifies the effect of the decision made in Indra Sawhney case by the Supreme Court where the reservation was provided only for appointment and not for promotion in government jobs. 

• 85th Amendment: This amendment amended clause (4A) of Article 17 and substituted for the words “in the matter of promotion to any class” by the words “in the matter of promotion with consequential seniority to any class”. This means that the promotions in government jobs will be given to these classes with retrospective date.

• 81st Amendment: This amendment added a new clause (4B) to Article 16 which ends the 50% ceiling on reservation for STs/SCs and OBCs in backlog vacancies which could not ne filled due to non – availability of eligible candidate of these classes in previous year even when the limit of 50% is crossed.

• 82nd Amendment: This amendment added a proviso to Article 335 which provided relaxation in qualifying marks in any examination or lowering the standards of evaluation,  for reservation in matters of promotion in favour STs and SCs.

M. Nagraj v/s Union of india (2007)

The aforesaid amendments (77th, 81st, 82nd and 85th) were challenged in this case on the ground of their being violative to the basic structure of the Constitution. 

A bench of 5 judges heard the case and delivered the following judgement:

• The court held that clause (4A) of Article 16 is an enabling provision. The said clause is carved out of Article 16(4) and therefore it will be governed by two compelling reasons; “backwardness” and “inadequacy of representation” as mentioned in Article 16(4). 

• In the same way the court held clause (4B) is also an enabling provision and the state can only make laws for reservation if the two circumstances mentioned above are fulfilled. 

• The court also upheld the Constitutional validity of 82nd Amendment, which inserted proviso to Article 335, relaxing qualifying marks of promotion to SCs/STs candidates. 

• The court also held that the state has to collect quantifiable data showing backwardness of SCs and STs as invalid. This was contrary to the judgement given by 9 judge bench in Indra Sawhney case. 

Jarnail Singh v/s Lachmi Narain Gupta (2022)

In this case, the decision made in M. Nagraj case was challenged by various states on the ground that it unjustly made difficult to grant reservations in promotions for government jobs and also that  it’s judgement is contrary to the judgement given by 9 judge bench in Indra Sawhney case. 

The court observed that the provision that the state does not have to collect quantifiable data showing backwardness of SCs and STs is contrary to the judgement of Indra Sawhney case which makes it invalid. 

The court observed the boundaries of reservation as follows:

1. The ceiling limit of 50% (quantitative limitation);

2. The principle of creamy layer  (qualitative exclusion);

3. The compelling reasons viz. Backwardness, inadequacy of representation,  etc. And

4. The overall administrative efficiency. 

The court further stated that the  whole propose of reservation is to give chance to the backward classes to move forward so they can be on an equal footing. If the creamy layer is not excluded, then it will violate the principles of equality as it will treat the equals differently; also some backward class will likely not get opportunities in front of advanced backward layer due to inclusion of creamy layer. Therefore the concept of exclusion of creamy layer was held valid.

Conclusion 

The main idea behind the policy of reservation was to give equal opportunity to those persons who were treated like a backward class in the society.  Over the time, this purpose of reservation has faded. Now reservation is used as a tool to gain profit. People who are capable and have opportunities in society, also using it for their profit and a deserving candidates of reservation can’t.  That’s why the idea of exclusion of creamy layer was introduced. 

The journey of reservation has a much long path to cover which is full of challenges.  The government should not compromise with it’s main purpose which is to give chance to the backward classes to move forward so that they can be on equal footing.