DEPARTMENT OF LAW, PRESTIGE INSTITUTE OF MANAGEMENT &

RESEARCH

TOPIC : Reservations are misused and unjustified against General Category of
persons.

CONSTITUTIONAL LAW PROJECT

FEBRUARY, 2017.

SUBMITTED IN THE PARTIAL FULFILLMENT OF B.A.LL.B.(Hons.), FOURTH
SEMESTER

SUBMITTED TO:-
SUBMITTED BY:-

Ms. Rishika Khare Saloni Tejawat

Assistant Prof. of Law 11110100075

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ACKNOWLEDGEMENT

In performing my assignment, I had to take the help and guideline of some respected persons,
who deserve my greatest gratitude. The completion of this assignment gives me much
Pleasure. I would like to show our gratitude Prof. Rishika khare for giving me a good
guideline for assignment throughout numerous consultations. I would also like to expand our
deepest gratitude to all those who have directly and indirectly guided me in writing this
assignment.

In addition, a thank you to Professor , who introduced me to the Methodology of work.

Many people, especially my classmates, have made valuable comment suggestions on this
proposal which gave me an inspiration to improve my assignment. I thank all the people for
their help directly and indirectly to complete my assignment.

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Table of cases

Akhil Bhartiya Soshit Karamchari Sangh Vs UOI 1981 11
Ashoka Kumar Thakur vs Union Of India And Ors on 10 April, 2008 10
Balaji vs State of Mysore AIR 1963 SC649 9
Indra Sawhney Etc. Vs Union of India And Others, Etc. 1992 7
M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006 10
Periakarpan Vs Tamil Nadu (1971), 9

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CHAPTER 1

1.1 Introduction

We live in a free country and this freedom is a gift of democracy to us. Our constitution gives
us the right to freedom and most importantly to exercise this freedom in an equitable manner.
At the same time it is incumbent on the part of the state to ensure that equality prevails in all
sections of the society.However in today’s time one of the major roadblocks to this equality is
the Reservation System.

India being a developing nation is currently facing many challenges and the reservation
system being one of them. The biggest question that lies in front of us is whether
implementing this reservation system has really helped the downtrodden? The current
scenario clearly depicts that the ‘lower’ castes are still discriminated in their daily lives. To
uproot casteism it is important that we fight the reservation system which alone will lead us
to development, competency, equality and unity.

1.2 Historical background

The reservation system finds its origin in the age-old caste system of India. The caste system
at its birth was meant to divide people on the basis of their occupation like teaching and
preaching (Brahmins), kingship and war (Kshatriya) and lastly business(vaish) etc. but soon it
became an instrument to divide the society on caste-basis, creating various walls between
different sections of the society. Today we stand divided widely into Hindu, Muslim, SC, ST
& OBCs with newer reservations coming up for other different sections of the society like
Christians, Kashmiris, Jats, Kashmiri Pandits, Tribals etc.

It was Justice Leslie C Miller, the then Chief Judge of Mysore Chief Court and chairman,
1st Backward Class Committee of Mysore, who officially introduced Policy of
Reservation.For this purpose, the Committee classified the Indian society into: –

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 Brahmins;

 Other Caste Hindus, Mohammedan and Indian Christians, and

 Depressed classes (including SCs and STs),1

Firstly we need to understand that the reservation system only divides the society leading to
discrimination and conflicts between different sections. It is oppressive and does not find its
basis in casteism. It is actually the antithesis of a communal living.

1 Introduced policy of reservation in government of India act,1919

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CHAPTER 2

2.1 Current Status Of Reservation In India

The Mandal commission 2by the central government to identify the socially or educationally
backward people. It was also set up to consider the question of seat reservations and quotas
for people to redress caste discrimination. It used social, economic, and educational
indicators to determine backwardness. But today are these reservations actually being utilized
on the above mentioned factors? The answer is prima facie ‘NO’ because the benefits are
being stolen away by the creamy layer.

In 1950, the Constitution of India stated that SCs will have 12.5% reservation in government
jobs and institutions and STs will have 5%. This was amended later in 1970 and the bar was
raised to 15% for SCs and for STs it became 7.5%.

Since, SCs and STs had their reservation quota, it happened that other castes also started
demanding reservations and things quickly spiralled out of control. Eventually, Supreme
Court passed a ruling where it was mandated that total reservations cannot ever exceed 50%.
This mandate was necessary because if all minority communities were given reservation, the
majorities or the upper class people would no longer get fair share of seats, which would be
in rightful proportion to their total population.

This is where things became bitter and conflicts based on reservations for castes came in.
People started questioning the whole system of reservation in India. This led to partition
among people.

The 93rd Constitutional Amendment allows the government to make special provisions for
“advancement of any socially and educationally backward classes of citizens”, including their
admission in aided or unaided private educational institutions. Gradually this reservation
policy is to be implemented in private institutions and companies as well. This move led to
opposition from non-reserved category students, as the proposal reduced seats for the General
(non-reserved) category from the existing 77.5% to less than 50.5% (since members of OBCs
are also allowed to contest in the General category).

2 Mandal commission was established in 1979

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CHAPTER 3

3.1 Reservation In Employment

A fixed percentage of India's government and public sector jobs are made exclusive for
categories of people largely based on their caste or tribe.

The 1992 Supreme Court ruling in the Indra Sawhney case said that reservations in job
promotions are "unconstitutional" but allowed its continuation for five years. 3 In 1995,
the 77th amendment to the Constitution was made to amend Article 16 before the five-year
period expired to continue with reservations for SC/STs in promotions. 4 It was further
modified through the 85th amendment to give the benefit of consequential seniority to SC/ST
candidates promoted by reservation.5

3.2 Reservation in education

In India most of the scholarships or student aid is available only to—SCs, STs, BCs, OBCs,
women, muslims, and other minorities. Only about 0.7% of scholarships or student aid in
India is based on merit.6

In central-government funded higher education institutions, 22.5% of available seats are
reserved for scheduled caste (SC) and scheduled tribe (ST) students (7.5% for STs, 15% for
SCs).this reservation percentage has been raised to 49.5% by including an additional 27%
reservation for OBCs. 7

3.3 Indian Parliament and Reservation System
3 Indra Sawhney Etc. vs Union of India And Others, Etc. 1992

4 77th Amendment Act, 1995

5 85th amendment act.2001

6 Guess how many Indians get merit-based scholarships". Rediff. 1 September 2014. Retrieved 2016-
05-08

7 Reservations In India' (Legalservicesindia.com, 2017)

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In India Indian Parliament and State Assemblies have passed various act to increase the
influence of reservation. Many politicians/political parties have used “Reservation” as their
election manifesto and some even managed to gain success.

1. In 1979 Mandal Commission was established to assess the situation of the socially
and educationally backward classes. The commission did not have exact figures for Other
Backward Class (OBC) and used the 1930 census data. It classified 1,257 communities as
backward and estimated the OBC population at 52%. It was on the recommendation of
Mandal Commission that reservation went from 22.5% to 49.5%. By the year 2006, 2297
castes were categorized as backward class, an increase of 60% from the list prepared by
Mandal commission.8
2. In 1995 Indian Parliament added reservation in promotions to the Schedule Castes and
Schedule Tribes by 77th Constitutional Amendment.
3. In August 1995 Kerala Government passed an Act that stated “there are no socially
advanced sections in any Backward Classes who have acquired the ability to compete
with Forward Classes.” This allowed the existing system of reservations to continue.
4. By 81st Constitutional Amendment in 2000, provisions were added that Reserved
Posts will be considered a separate class of vacancies to be filled in succeeding years and
this class of vacancies shall not be considered together with the vacancies of the year that
were being filled up for the purpose of determining the 50 per cent ceiling.
5. In 2000, 82nd Constitutional Amendment stated “relaxation in qualifying marks or
lowering standards of evaluation“. 93rd Constitutional Amendment made provisions for
“advancement of any socially and educationally backward classes of citizens”, including
their admission in aided or unaided private educational institutions. Gradually this
reservation policy is to be implemented in private institutions.

8 Mandal Commission' (En.wikipedia.org,2017)

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CHAPTER 4

Opinion on Reservation System

Reservations were introduced as an exception, a temporary one, but it became a permanent
feature,It tends to grow. Concessions once given to a group is grabbed one after another
group,Concessions introduced in one sphere, spreads to others.With its growth, it suffers
progressive, rapid debasement.Education system should be merit based and not based on
relaxed criteria for entry.9

The Government should not proceed on the basis that once a class is considered as a
backward class, it should continue to be backward class for all time to come. Such an
approach would defeat the very purpose of the Reservation. Therefore, the list of castes,
which are entitled to Reservation must be kept constantly under review.10

In a case Balaji v/s State of Mysore11 it was held that ‘caste of a person cannot be the sole
criteria for ascertaining whether a particular caste is backward or not. Determinants such as
poverty, occupation, place of habitation may all be relevant factors to be taken into
consideration. The court further held that it does not mean that if once a caste is considered to
be backward it will continue to be backward for all other times. The government should
review the test and if a class reaches the state of progress where reservation is not necessary it
should delete that class from the list of backward classes.’

Today when a student applies for an admission in any university, the admission forms are
filled with questions like ‘Are you SC/ST or OBC or General Category?’ How does it matter
which category does he belong to, what matters is his merit. A category cannot decide
whether he is eligible for admission or not. There many economically worse off children
belonging to the forward classes but they cannot get the fruits of such reservation merely by
virtue of belonging to the ‘general’ category. Sometimes these children belonging to the
backward classes do not even deserve and still possess the necessary merit as against a child

9 Arun shourie, an Indian journalist

10 Periakarpan Vs Tamil Nadu (1971), Chote Lal and others Vs State of UP

11 AIR 1963 SC649

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who studied very hard for months to get a seat, thereby snatching away that seat just because
he comes from a particular religion or caste for which our government provides reservation.

There are poor people in forward caste community. Again there are rich people in backward
caste community. Reservation system simply overlooks this.

The present system of reservation is in favour of `classes', and not individuals. And in order
that the individuals may qualify for them, they must belong to those classes. There is no one
or particular `class' which is economically backward. All classes and social groups have
economically backward individuals. But on that account alone, a group does not qualify to be
called a backward class.

Not the `upper' castes or the social groups, but the poor individuals in the groups who should
be entitled to reservation. As has been pointed out earlier, reservation has been provided in
the Constitution for `classes', not individuals. If the individuals have to be provided with
reservation on the economic criterion, then those satisfying the said criterion and belonging to
any caste and social group, irrespective of any distinction will be entitled to it, including the
individuals belonging to the backward classes and the Scheduled Castes and the Scheduled
Tribes. For, such reservation will fall in the general category and all will be entitled to it
whether there is reservation on other grounds or not. 12

Reservation in promotion is disastrous enough for the Civil administration,It divides the
country along caste lines and is against social harmony and social intermingling of various
castes, and, Equality is the very heart of free republic, the foundation stone of true republic,
the source of inspiration, the criteria for its citizenship and the hope for its welfare. The
bedrock of Reservation is discrimination in reverse; it is discrimination against merit and
caliber. Palkiwala opines that Mandal has revived the casteism, which the Constitution
emphatically intended to end.13

12 The Hindu : The Constitution And Reservation' (Thehindu.com, 2003)

13 Palkiwala – Unity and Security of State at Stake Indian Express September 14, 1990

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Judiciary has played great role in the reservation policy. The great example of this N
Nagrajan’s case14, Ashok Kumar Thakor15, and Indira Shawney’s case. In this cases , supreme
court has given passing reference to the reservation on the SC & ST in jobs. But Supreme
court has said that reservation should not increase then 50% in any condition but in most of
North Eastern state this reservation is increased to 85% and still they have started a move to
increase it to the 95% and court is not taking any steps against it. By this way we can see that
judiciary is also playing a role in increase of reservation for SC & ST.

On Special protection – “Special protection under Article 16(4) is not in the nature of an
exception. The principles of Art 46 are to be kept in mind, viz. that it is extended to the
weaker sections of people. However, the Reservations should not be used to imperil
administrative efficiency in the name of concessions to backwardness… Efficiency of
administration is bound to be adversely affected, if general candidates of high merit are
excluded from recruitment…. The politicization of casteism, its infiltration into unsuspected
human territories and the injection of caste concession’s in schools and colleges via
backwardness Reservations, are a canker in the rose of secularism”.16

If go in for Reservations on communal and caste basis, we swamp the bright and able
people and remain second rate or third rate. I am grieved to learn of how far this business of
Reservation has gone on communal considerations. It has annoyed me to learn that even
promotions are sometimes based on communal or caste considerations.”17

14 M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006

15 Ashoka Kumar Thakur vs Union Of India And Ors on 10 April, 2008

16 Akhil Bhartiya Soshit Karamchari Sangh Vs Union of India 1981

17 Pt. Jawahar Lal Nehru’s opinion about Reservation in government Jobs in a letter sent to all the
chief ministers of the states on June 27, 1961

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CHAPTER 5
Conclusion

Nothing much has changed since the past 69 years proving that we have misdirected our
energies in the wrong direction. We have failed utterly in bringing the under-privileged at an
equal footing with the rest of the society. Rather, many a times, it seems that the reservation
policy tries to avenge the wrong done to the non-privileged all these years. We have
successfully paralysed a section of the society permanently and blocked their upward
mobility by killing their zeal to work hard and be rewarded. Who will want to work hard if
one gets an opportunity and other incentives without burning the midnight oil? Instead of
encouraging this kind of lethargy, the policy should be formulated in such a way as to harness
the real cream of every section of the society regardless of their caste or community for the
betterment of the society.

According to my view , it is needed to keep aside the narrow vote bank politics and think
truly for the betterment of the under-privileged and honestly pursue! policies and
programmes for their upliftment.

If government still wants to keep reservation policy then now it should not be based on caste
or class, it should be based on the annual income of the person. If the person is earning less
than he requires more money for his family and children and this thing he can get only by a
job or in public service.By this means only such persons can provide good education to their
children.

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REFERENCES

1. 77th Amendment Act, 1995
2. 85th amendment act.2001
3. Akhil Bhartiya Soshit Karamchari Sangh Vs UOI 1981
4. Ashoka Kumar Thakur vs Union Of India And Ors on 10 April, 2008
5. Balaji vs State of Mysore AIR 1963 SC649
6. Government of India Act,1919
7. Guess how many Indians get merit-based scholarships". Rediff. 1 September 2014.
Retrieved 2016-05-08
8. Indra Sawhney Etc. Vs Union of India And Others, Etc. 1992

9. M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006
10. Mandal Commission' (En.wikipedia.org, 2017)
11. Periakarpan Vs Tamil Nadu (1971), Chote Lal and others Vs State of UP
12. 'Reservations In India' (Legalservicesindia.com, 2017)
13. The Hindu : The Constitution And Reservation' (Thehindu.com, 2017)

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