Journey Of Reservation In India

Key Takeaways

• The Constitution of India has been amended several times to nullify the judgments of the courts and to enforce reservation policies according to the will of the legislature.
• Criteria adopted by the state for the classification of citizens for providing reservations must not be unreasonable and unintelligible. The magnitude of the reservation should not be so much that legitimate claims of other communities are denied.
• Caste or Economic Criteria cannot be the sole basis for providing reservations. Relaxation of policies relating to promotion, in favour of SCs and STs, has been upheld by the courts.
• Sub-classification of Backward Classes, in a reasonable manner, is allowed.
• ‘Creamy Layer’ must be excluded while providing the benefit of reservation to the OBCs.
• ‘Transgenders’ are to be treated as a Socially and Educationally Backward Class. So, all the benefits of reservations must be extended to them.

Introduction

In India, the idea of a Caste-based Reservation system was originally conceived by William Hunter and Jyotirao Phule in 1882. This demand was not taken seriously by the rulers of the time. But nearly two decades later, to create differences between the Indians, the British Government introduced separate electorates for Muslims through Indian Councils Act, 1909. This concept of communal representation was extended by the Government of India Act, 1919 to Sikhs, Indian-Christians, Anglo-Indians, and Europeans. In 1932, the ‘Communal Award’ was announced to provide separate electorates for Dalits (Depressed Classes) also. Later on, the Government of India Act, 1935 extended separate electorates for Scheduled Castes, women, and labour workers. In 1942, due to the efforts of Dr. B.R. Ambedkar, 8.5% reservation in civil services was recommended by the Viceroy’s Executive Council for Scheduled Castes. After Independence, the Constitution of India, through Article 16 (4), made it clear that the state can provide reservations to the backward classes that are not adequately represented in the services of the state.

Tracing the Journey of Reservations in India through Judgments

Reservation is a politically sensitive topic in India. The Constitution of India, being the grundnorm, provides for reasonable discrimination for the upliftment of the Backward Classes. So, if the State (as defined under Article 12) wants to provide reservation to a particular class of citizens, it has to conform to the Constitution.

After Independence, with changing social circumstances, it was realized that the provisions of the Constitution are not sufficient to enforce social equity. So, several Amendments were made in the Constitution to increase the scope of reservation that can be provided to Backward Classes. Also, several Acts were enacted by the Parliament and State Legislatures to enforce the reservations allowed by the Constitution. Numerous Orders were also passed by the Central & State Governments in this regard.

These legislations and orders have been challenged by way of writ petitions, as to be violating the Fundamental Rights of the petitioners. These challenges have resulted in landmark cases, which have been discussed in this article below.

State Of Madras v. Srimathi Champakam Dorairajan (1951 AIR SC 226, 1951 SCR 2 525)

The Constitution of India, as was adopted in 1949, did not provide any provision for reservation for Backward Classes in the Educational Institutes.

In the State of Madras, seats in the Medical and Engineering Colleges (maintained by the State) used to be filled based on a Communal Government Order (“G.O.”). The Government had allotted a specific number of seats to Brahmins, Non-Brahmins (Hindus), Backward Hindus, Harijans, Anglo Indians & Indian Christians, and Muslims, through the aforesaid G.O.

This G.O. was challenged through two separate writ petitions (before the High Court), where the petitioners claimed that the Communal G.O. breached their fundamental right to get admission in the Educational Institutions maintained by the State [provided under Article 15 (1) and Article 29 (2) of the Constitution of India]. The petitions were allowed. So, the State of Madras went into an appeal to the Supreme Court of India, challenging the judgment of the High Court.

The Advocate General of Madras, argued in the Supreme Court, that the provisions of Article 46 (which urges the State to promote with special care the educational and economic interests of the weaker sections of the people) override the provisions of Article 29 (2).

The Hon’ble Supreme Court, in its judgment, rejected the arguments of the State of Madras, dismissed its appeal, and observed that the impugned Communal G.O., being in clear violation of Article 29 (2), is void under Article 13.

The Constitution (First Amendment) Act, 1951

To nullify the effect of the Champakam Dorairajan Judgment, an amendment was introduced into the Constitution, and clause (4) was added to Article 15, which provided that:

“(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

M.R. Balaji and Ors. v. State of Mysore [1963 AIR SC 649, 1963 SCR SUPP 1 439]

The State of Mysore had passed various orders from 1958 to 1961 for providing reservations for Socially & Educationally Backward classes. But, all of these orders were challenged and were struck down by the Mysore High Court.

In 1962, the State of Mysore passed another order for providing reservations in the light of the report of the Nagan Gowda Committee. By this order, the State reserved, 68% of seats in the Medical, Engineering & Technical Educational Institutions. This order was challenged before the Hon’ble Supreme Court in the present M.R. Balaji by way of various writ petitions.

The petitioners argued that the order passed by the State of Mysore [under Article 15 (4)] was unconstitutional because the criteria adopted by the order for classifying the socially and educationally backward classes of citizens in the State is unintelligible and irrational, and the classification made on the said basis is inconsistent with and outside the provisions of Article 15(4). So, due to extravagant unreasonableness, the order cannot be justified by Article 15 (4).

These allegations were denied by the State. After considering the arguments of all the parties, the Hon’ble SC observed that:

1. Article 15 (4) does not permit reservation on the sole basis of castes.
2. Reservation of 68% made by the impugned order is inconsistent with the concept of the special provision authorized by Article 15(4).
3. Reservation provided under Article 15 (4) should not nullify the Right of Equality provided under Article 15 (1).
4. The orders of the State, providing reservation, must be based on an objective approach.
5. Article 15 (4) does not justify the sub-classification between Backward Classes and more Backward Classes.

So, the Hon’ble SC allowed the writ petitions and declared the impugned order of the State of Mysore to be void.

T. Devadasan v. Union of India [1964 AIR SC 179, 1964 SCR (4) 680]

The main issue before the Hon’ble Supreme Court, in this case, was that, whether the Carry Forward Rule is unconstitutional. Carry Forward Rule states that if reserved seats for a post are not filled by candidates belonging to reserved categories in a particular round of recruitment (due to a lack of eligible candidates), then those seats are carried forward to the next round of recruitment.

Carry Forward Rule

To understand this better, let’s suppose that recruitment is going on for 100 seats. 20 out of these 100 are reserved for socially and educationally backward candidates. If in, say the year 2018, out of the 20 reserved seats, no seat is filled by the reserved category candidate and all 100 seats are filled by the unreserved candidates, then 20 reserved seats (which were not filled by the reserved category candidates in 2018) will get carried forward to 2019.

So, in 2019, there will be 40 reserved seats and 60 unreserved seats. In this way, if in 2019, no reserved seat is filled due to a lack of eligible candidates, then all the reserved seats will carry forward. So, in 2020, there will be 60 reserved seats and 40 unreserved seats.

Magnitude of Reservation cannot be excessive

In the present case, the carry forward rule resulted in a scenario where 65% of the available seats of Assistant Superintendents of the Central Secretariat Service were filled by candidates belonging to Scheduled Castes & Scheduled Tribes when the advertised reservation in the Government Notification was only 12.5% and 5% for the SCs & STs respectively. So, the petitioner challenged this in the Hon’ble SC.

The Hon’ble SC held that the “Carry forward rule”, due to which more than 50% of the vacancies available for a post could be filled by candidates belonging to SCs/STs, was unconstitutional. So, the writ petition was allowed and it was observed that the magnitude of the reservation should not be so much that a deserving candidate is denied an opportunity for an appointment and legitimate claims of other communities are denied.

State of Kerala and Anr. v. N.M. Thomas & Ors. [1976 AIR SC 490, 1976 SCR (1) 906]

In this case, the main task before the Hon’ble SC was to determine the validity of Rule 13-AA of the Kerala State and Subordinate Service Rules, 1958. Under these rules, the Promotion of the candidates was contingent on the passing of Special & Departmental tests. Rule 13-AA provided that the State Government could exempt candidates belonging to a Scheduled Caste / Scheduled Tribe for a specified period from such tests. Two orders were issued by the Government of Kerala in this regard, under Rule 13-AA.

So, Rule 13-AA along with the aforesaid two orders was challenged by the petitioner to be violative of Article 16 (1). In essence, the petitioners, in this case, challenged the relaxation of policies relating to promotion in favour of SCs and STs.

Ultimately, the validity of the two orders and Rule 13-AA was upheld by the Hon’ble Supreme Court, observing that it is fair and rational to classify the employees into SCs and STs for providing an extension for appearing in tests required for promotion. The court observed that Article 16 (4) is not just an exception to Article 16 (1) and that it stands on its footing.

Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India [1981 AIR SC 298, 1981 SCR (2) 185]

The Hon’ble SC in this case held that the Scheduled Caste and Scheduled Tribe candidates belonged to a substantially different footing and hence they can be treated separately. The court upheld the “carry forward rule”, opining that even if the reserved vacancies are carried forward, there is no prospect that the candidates belonging to reserved categories would turn up to fill those.

The court applied the rule of Harmonious Construction and observed that, even in Devadasan’s case, the state’s power to provide reservation up to a reasonable extent was upheld.

Indra Sawhney and Others v. Union of India and Others [Mandal Case] (1992 SUPP SCC 3 217)

In 1980, Second Backward Classes Committee (Mandal Commission), through its report, recommended that Other Backward Classes (OBCs) shall be provided 27% reservation along with 22.5% reservation for Scheduled Castes / Scheduled Tribes. In 1990, the Janata Government at the Centre issued a notification providing for 27% reservation to the OBCs in civil posts and services.

This led to widespread protests throughout the country. Eventually, Janata Government collapsed and Congress Government under P.V. Narshima Rao came into power. Narshima Rao Government issued a fresh Office Memorandum (“O.M.”) along the lines of the one issued by the Janata Government. It also introduced a 10% reservation for Economically Backward Classes and provided for the adoption of economic criteria for a 27% reservation for the OBCs.

These O.M.’s were challenged in the Hon’ble Supreme Court. The petitioners primarily argued that the application of the Mandal Commission report would increase the caste divide in society. It was argued that Article 16 (1) of the Constitution of India prohibits the State from unreasonable discrimination in favour of a particular class of people. The respondent State forwarded arguments to support its Order (providing reservation for OBCs) and the Mandal Report.

The Hon’ble Supreme Court observed that:

1. 27% reservation for OBCs is valid.
2. The Government must exclude the ‘creamy layer’ from the benefit of reservations being provided to the OBCs.
3. Reservation regarding direct requirements cannot exceed 50% of the total vacancies.
4. ‘Carry Forward Rule’ is valid but it shall not violate the aforesaid 50% cap.
5. There cannot be any reservation in Promotions.
6. The backwardness of a class cannot be determined solely based on economic criteria. Caste System needs to be given due consideration.
7. 10% reservation to Economically Weaker Sections of Higher Castes cannot be provided.
8. Article 16 (4) stands on its footing and is not just an exception to Article 16 (1).
9. Article 16 (4) allows for sub-classification of backward classes.
10. A permanent statutory body shall be constituted for dealing with complaints of exclusion or over-inclusion of the castes in the list of OBCs.

Aftermath of Mandal Case

• By an act of Parliament, National Commission for Backward Classes was set up in 1993, for dealing with complaints of exclusion or over-inclusion of the castes in the list of OBCs.
• Constitution (76th Amendment) Act was enacted in 1994 to nullify the effect of the mandatory cap of 50% on reservations in Tamil Nadu, where the reservation was for 69% of the seats. This amendment put Tamil Nadu’s Reservation Act of 1994 into Schedule 9 of the Constitution.
• Constitution (77th Amendment) Act was enacted in 1995 to nullify the effect of the Mandal Case about the Reservations in Promotions. Clause 4A was inserted in Article 16, which read as follows:

"(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."

• To nullify the Carry Forward Rule’s 50% cap set by Mandal Case, Constitution (81st Amendment) Act was passed. It inserted clause (4B) in Article 16, which reads as follows:

“(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.”

M. Nagaraj and Others v. Union of India and Others (2010 SCC 12 826)

In this case, Constitution (85th Amendment) Act, which provided reservation in promotions with consequential seniority, was challenged as being violative of rights provided by Articles 14 and 16 (1). Some petitioners also challenged the Constitution (77th Amendment) Act. The petitioners contended that the aforementioned policy will result in reverse discrimination against the employees belonging to unreserved classes. It was also argued that these Amendments explicitly go against the judgment of the Hon’ble Supreme Court in the Mandal case.

The respondents argued that the amendments to the Constitution were mandated by the changes in the social circumstances. Furthermore, it was contended that jurisprudence of Mandal Case Judgment was limited to OBCs and to place OBCs and SCs/STs on equal footing would be a constitutional blunder.

The Hon’ble Supreme Court upheld the constitutional validity of the 77th, 81st, and 85th Amendments. It was observed that in regard to the ‘extent of reservation’, the State will have to show that compelling reasons like backwardness, inadequate representation, and administrative efficiency, exist in each case. To show the backwardness and inadequacy of representation of SCs and STs in the services, the state will have to collect quantifiable data and comply with provisions of Article 335.

Ashoka Kumar Thakur v. Union of India (2008 SCC 6 1)

In this case, Constitution (93rd Amendment) Act and Central Educational Institutions (Reservation in Admission) Act, which provided 27% reservations to OBCs in higher Educational Institutions, was challenged. The Hon’ble Supreme Court upheld the validity of the Act and the amendment. It observed that the “creamy layer” must be excluded from the reservation and that private educational institutions must not be brought into the ambit of the reservation.

Ganga Kumari v. State of Rajasthan (Civil Writ Petition No. 10672/2021, RJ HC)

In this case, a petition was filed, seeking the issuance of directions for providing reservations to the transgenders. Reliance was placed on the Hon’ble Supreme Court Judgment in the case of NALSA v. Union of India & Ors. [(2014) 5 SCC 438]. To this, the respondent argued that the matter and extent of the reservation is the prerogative of the state. So, the Petitioner cannot ask for Reservation in a particular manner.

The Hon’ble Rajasthan High Court held that the State is bound by paragraph 135.3 of the NALSA case judgment. So, the State must treat ‘transgenders’ as a Social & Educationally Backward Class, extending to them, the benefit of all kinds of reservations in admissions and job appointments. So, the petition was disposed of in the favour of the petitioner.

Jarnail Singh v. Lacchmi Narain Gupta (2018 SCC 10 396)

In this reference case, the validity of the Hon’ble Supreme Court’s judgment in the M. Nagaraj case was discussed. The Union of India argued that the direction in M. Nagaraj's judgment regarding ‘collection of quantifiable data’ goes against the Mandal case judgment, as the court, in that case, had held that upon inclusion of SCs / STs in the Presidential List under Articles 341 and 342, their backwardness must be presumed and there is no need to prove their backwardness all over again.

After due deliberation, the Hon’ble Supreme Court held that the direction in M. Nagaraj's judgment, mandating the collection of quantifiable data for determining the backwardness of SCs / STs is invalid, as it violated the Mandal case Judgment.

Jaishri Laxmanrao Patil v Chief Minister, Maharashtra (SLP (C) 15737/2019)

From 2014 to 2019, several writ petitions were filed before the Hon’ble Bombay High Court, challenging the Ordinances and Statutes, providing the benefit of reservation to the Maratha Community and 52 Muslim Communities. Particularly, ESBC (Educationally and Socially Backward Category) Act, 2014, and SEBC (Socially and Educationally Backward Classes) Act, 2018 were challenged. Issue of Interpretation of Constitution (102nd Amendment) Act was also involved in some of the petitions. The Hon’ble Bombay HC, through its 27.06.2019 judgment, disposed of these petitions and gave the verdict largely in favor of the State. So, several appeals were against the aforesaid judgment in the Hon’ble Supreme Court. The matter was referred to a Constitutional Bench, as it involved substantial questions regarding the interpretation of the Constitution.

The Constitutional Bench of the Hon’ble Supreme Court delivered its judgment on 05.05.2021, wherein, it struck down the Socially and Educationally Backward Classes Act, 2018. The court held that:

1. Socially and Educationally Backward Classes (SEBC) Act, 2018 violates the 50% limit on reservations set by the Mandal case judgment.
2. There was no extraordinary circumstance allowing the breach of the 50% limit, as the “Marathas are dominant forward class” in the State.
3. Constitution (102nd Amendment) Act takes away the power of the states to identify backward classes. Now, states can only make recommendations to the Central Government.
4. Mandal Case Judgment and 50% cap on reservations need not be reconsidered.

Neil Aurelio Nunes Vs. Union of India [W.P.(C) No.-000961 / 2021]

On 29th July 2021, a notice was issued by the Directorate General of Health Services. The notice provided a 27% reservation quota to non-creamy layer OBCs & 10% reservation quota to Economically Weaker Sections (EWS), in the All-India Quota (AIQ) for NEET-UG and PG, from the academic year 2021 to 2022. This notice was challenged by various of various Writ Petitions.

Upon the validity of the 27% quota provided to OBCs, detailed arguments were put forward by both sides. The petitioners, by placing reliance on Pradeep Jain v. Union of India (1984 AIR 1420), argued that there must be no reservation for the OBCs in the AIQ quota. It was further contended that, even if the 27% quota is constitutionally valid, it must not be brought into force for 2021 Admissions, as the 29th July Notification was issued after the closure of registrations.

The Union of India, on the other hand, argued that the Notification was issued much before the NEET Examination and the Counselling process. So, “The rules of the game were not changed after the process had begun”. It was contended that AIQ is a central scheme, and hence, for implementation of the benefit of reservation, the Central List of OBCs shall be used.

By passing an order on 7th January, 2022, the Hon’ble Supreme Court upheld the constitutional validity of the 27% quota provided to non-creamy layer OBCs. The case has been listed in April for final arguments regarding the validity of the EWS quota.

In the interim, the court allowed the admissions through NEET 2021 counseling to be conducted according to the reservation provided by the 29th July Notification of the DGHS.

Pattali Makkal Katchi v. A. Mayilerumperumal & Ors. [Vanniyar Reservation Case] (Civil Appeal No. 2600 of 2022)

In this case, the Hon’ble Supreme Court upheld the Madras High Court Judgment holding that there is no substantial basis for different treatment of Vanniakula Kshatriyas from 115 other communities within the MBCs (Most Backward Classes) and DNCs (De-notified Classes).

It struck down the 10.5% internal reservation provided by the Tamil Nadu Special Reservation Act, 2021 to the Vanniakula Kshatriyas, observing that the caste can be the starting point for providing internal reservation, it cannot be the sole basis. The Court, furthermore observed that the State Legislatures are competent to enact laws on matters incidental to a statute that has been placed in Schedule 9 of the Constitution of India. Therefore, the Legislature of the State of Tamil Nadu was competent to enact the 2021 Act. No express prohibition is provided by Article 31-B regarding that.

Sub-classification of Backward Classes

Detailed arguments were put forward by both sides on the issue of the validity of the Sub-classification of Backward Classes to provide reservation. The Hon’ble Madras High Court had placed reliance on the judgment of E.V. Chinnaiah v. the State of A.P. [(2005) 1 SCC 394] and held that classes cannot be sub-divided to give benefit to a minuscule portion of the population.

The appellants vehemently opposed this holding of the HC by citing Mandal case judgment and contending that sub-classification is allowed. E.V. Chinnaiah Judgment’s correctness was also questioned by them by arguing that the said judgment has been referred in State of Punjab v. Davinder Singh (Civil Appeal No. 2317 of 2011), for consideration by a larger bench. The Hon’ble Supreme Court, ultimately observed that there can be sub-classification even among the backward classes, on a reasonable basis.

Conclusion

The Constitution of India is a living document and it can adapt according to the changing circumstances, through the aid of the Legislature. This adaptability is particularly important given the complexity of the Indian Society and its diverse nature. Reservation, as a practical concept, has seen a drastic change since the enactment of the Constitution. The Legislature has played its part in the Journey of Reservations by trying to mold the Constitution for the benefit of society, and at times for their political gains too. To balance things out, the Hon’ble Supreme Court and the High Courts have given detailed judgments, interpreting and explaining the law of the land on this topic. In my humble opinion, with the help of these great institutions, we are on the right path and are moving towards a more equitable and just society. Several cases, including the one challenging the validity of the Constitution (103rd Amendment) Act, are pending before the courts and their decisions will further shape the law relating to reservations.