DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
POLICY OF RESERVATION

SUBJECT
SOCIOLOGY

NAME OF THE FACULTY

PROF LAXMIPATHI RAJU

Name of the Candidate: AMANDEEP MALIK

Roll no: 19LLB076
Semester: 1

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher PROF LAXMIPATHI RAJU,
M.A, M.S.W, PhD , who gave me the opportunity to do this wonderful project on the topic
POLICY OF RESERVATION , which also helped me in doing a lot of research and I came to
know about so many new things about problems which are faced by the country.

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 TABLE OF CONTENTS

ABSTRACT ................................................................................................................................... 4

INTRODUCTION......................................................................................................................... 5

RESERVATION POLICY IN INDIA ........................................................................................ 6

Concept of Reservation...................................................................................................... 6

Reservation Policy in Pre-Independence Era .................................................................. 6

Reservation policy in post- independence era ................................................................. 7

RESERVATION IN DIFFERENT FIELDS .............................................................................. 9

CONCEPT OF SC, ST AND, OBC ........................................................................................... 10

STATUTES AND COMMISSIONS RELATED TO SC, ST AND OBC .............................. 13

CONSTITUTION ARTICLES AND AMENDMENTS RELATED TO RESERVATION 16

CASE LAWS RELATED TO RESERVATION...................................................................... 19

CONCLUSION ........................................................................................................................... 24

BIBLIOGRAPHY ....................................................................................................................... 26

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 ABSTRACT

• Title: policy of reservation

• Research problem: Is policy of reservation is beneficial in the development of country or
not.
• Identification of variable:

1. Dependent: taking information from SC/ST and OBC Commission reports.

2. Independent: different views on the policy of reservation.

• Tools of collection of data: different acts and statutes and cases related to reservation.
• Analysis: through tables and charts
• Findings: to know how policy of reservation is beneficial for the development of country.
• Conclusion: on the basis of research and findings I will draw the conclusion.

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INTRODUCTION

Reservation Policy in India is a process of reserving certain percentage of seats (maximum 50%)
for a certain class such as Scheduled Castes, Scheduled Tribes, Backward classes, etc. in
Government educational institutions, government jobs.

The Indian society is characterized by a high degree of inequality based on the tenets of the caste
system and this caste system is highly exclusionary in nature. Exclusion is integral to the system
and thus a consequence of its basic features. Social exclusion between caste groups is ensured
through the practices of endogamy and social separation. In retrospect every caste except those at
the top of the caste hierarchy has suffered from unequal and hierarchal assignment of rights. The
erstwhile oppression people having been located at the bottom of the caste hierarchy are the ones
who suffered the most. For instance apart from manual labour and some occupations that were
considered impure and polluting the erstwhile deprived communities were denied the right to do
business or own property. They were even denied the right to education and civil cultural and
religious rights. Besides they have been made to suffer from residential segregation and social
isolation because they are considered impure and polluting and not fit for social association by the
high castes. After independent the father of Indian constitution Dr. B.R. Ambedkar has adopted
democracy system in the constitution.

Now we are living in the greatest democratic system of India. The principle of democracy people
should have equal representation in the all sections of the nation. Based on the principle of
democracy, reservation policy is a series of affirmative action’s undertaken through reserving
access to seats for equal representation in the government jobs, higher educational institutions and
politics to providing reservation for socially and educationally backwards in India. Reservation
policy not had the results aspired to, as it has not been backed by a more holistic programme that
truly addresses historic oppression and inequality. Reservation is governed by constitutional laws,
and local rules and regulations. Scheduled castes, Scheduled Tribes and other Backward Classes
and in some states Backward Classes among Muslims under a category called BCM are the
primary beneficiaries of the reservation policies under the constitution. The spirit of equal
representation pervades the provisions in the Indian constitution. The main aim of the founder of
Indian constitution was to create an egalitarian society wherein social, economic and political
justice prevailed and equality of status and opportunity are made available to all.

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RESERVATION POLICY IN INDIA

❖ Concept of Reservation

According to justice Chinappa Reddy: “Reservation is not a charity it is representation.”

Reservation in common terms refers to an act of reserving keeping back or withholding reservation
in India law is a form of affirmative action Whereby a percentage of seats are reserved in the public
sector union and state civil services union and state government departments and in all public and
private educational institutions except in the religious or linguistic minority educational
institutions for the socially and educationally backward communities and the represented in these
services and institutions. The reservation policy is also extended for the scheduled castes,
scheduled tribes and other backward classes for representation in the parliament of India. And this
representation is giving to the unrepresented community1.

❖ Reservation Policy in Pre-Independence Era

The legal origin of Reservation Policy in India began with lying down of the Government of India
Act, 1919 which came during the turbulent period of World War I. During this period, the British
were more focussed on Europe rather than on India yet they passed much important and significant
legislation that aimed at the development of the Indian Territory. This Act of 1919 not only
introduced several reforms for the Indian Governmental institutions but also addressed many
issues of minorities including the formation of communal electorates. Though the system was
criticized firmly by Montague-Chelmsford as a system that could be a hindrance to the self-
development policy but because Muslims already had a communal electorate through the Minto-
Morley reform of 1909 and, therefore, they found it unfeasible to take away the separate electorates
of Muslims2.

After the Act of 1919, the controversial Simon Commission came up in 1927 to scrutinize the
Montague- Chelmsford reforms. After touring the entire Indian provinces, their representatives
proposed for combining separate electorates and reserving seats for depressed classes and demand
for the wider franchise was there as the economic, educational and social position of these
depressed classes did not allow them to vote properly. To stamp and scrutinize the report of Simon

1
Shrikant Nityanath et al., International Journal of Advanced Education and Research, 221 (vol 2. 2017).
2
Ibid, p.222.

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Commission and the reforms proposed by them and how to incorporate them into new
Constitution, a Round Table Conference was convened in London in 1931. There were many
Indian delegates from various interest groups. The conference was chaired by Prime Minister
Ramsay Macdonald. There were appeals for separate electorate from B.R Ambedkar but Mahatma
Gandhi strongly opposed the appeal for separate electorate for depressed classes and because of
this strong opposition from Mahatma Gandhi and Congress the issue of minority remained
unresolved in the Conference3.

After this the Communal Award and the Poona Pact of 1932 came into force wherein the Prime
Minister Macdonald announced the communal award where the separate representations were to
be provided to Muslims, Sikhs, Indian Christians, Anglo- Indians, Europeans and Dalits Depressed
classes’ were assigned a number of seats that were to be filled by election from special
constituencies in which voters belonging to the depressed classes could only vote.

The award brought in criticism from Mahatma Gandhi but was strongly supported by Dr. BR
Ambedkar and other minority groups. As a result, of the hunger strike by Mahatma Gandhi and
widespread revolt against the award, the Poona Pact of 1932 came into being which brought in a
single general electorate for each of the seats of British India and new Central Legislatures 4. The
stamping of the provisions of Poona Pact, 1932 were done in The Government of India Act of
1935 where reservation of seats for depressed classes was allotted. This was the scenario before
the independence of India.

❖ Reservation policy in post- independence era

After the independence of India in 1947 there were some major initiatives in favour of the STs,
SCs and after the 1980s in favour of OBCs (Other Backward Castes) and in 2019 for poor general
category. The country's affirmative action programme was launched in 1950 and is the oldest such
programme in the world.

A common form of caste discrimination in India was the practice of untouchability. SCs were the
primary targets of the practice, which was outlawed by the new Constitution of India.

3
Ibid.
4
Ibid.

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In 1954, the Ministry of Education suggested that 20 percent of places should be reserved for the
SCs and STs in educational institutions with a provision to relax minimum qualifying marks for
admission by 5 percent wherever required. In 1982, it was specified that 15 percent and 7.5 percent
of vacancies in public sector and government-aided educational institutes should be reserved for
the SC and ST candidates, respectively.

A significant change began in 1979 when the Mandal Commission was established to assess the
situation of the socially and educationally backward classes.The commission did not have exact
population figures for the OBCs and so used data from the 1931 census, thus estimating the group's
population at 52 per cent. In 1980 the commission's report recommended that a reserved quota for
OBCs of 27 per cent should apply in respect of services and public sector bodies operated by the
Union Government. It called for a similar change to admissions to institutes of higher education,
except where states already had more generous requirements. It was not until the 1990s that the
recommendations were implemented in Union Government jobs. In 2019 the government
announces the 10% reservation in educational institutions and government jobs for economically
weaker section of general category.

The Constitution of India states in article 15(4): "Nothing in [article 15] 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 of or for the Scheduled Castes and the Scheduled
Tribes." Article 46 of the Constitution states that "The State shall promote with special care the
educational and economic interests of the weaker sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all
forms of exploitation5."

The Supreme Court of India ruled in 1992 that reservations could not exceed 50 percent, anything
above which it judged would violate equal access as guaranteed by the Constitution. It thus put a
cap on reservations. However, the recent amendment of the constitution exceeds 50% and also
there are state laws that exceed this 50 percent limit and these are under litigation in the Supreme
Court. For example, in the State of Tamil Nadu, the caste-based reservation stands at 69 percent

5
M.P. Jain, Constitution of india, (8th edn.).

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and applies to about 87 percent of the population. Reservation is not just for SC,ST and OBC
reservation is also for women's and transgender so they can get equal opportunity.

RESERVATION IN DIFFERENT FIELDS

Reservation in Politics: The constitution empowers the state to take steps to provide due
representation to the scheduled caste and scheduled tribes. Various articles contain provision for
the reservation of seats for the scheduled caste and scheduled tribes in the nation’s legislative
assembly of the states. Article 332 in Municipalities Article 243 T in various panchayat (local self-
government) level bodies, namely, village, taluk and district Article 243 D. In the parliament caste
and tribe -based reservations are provided to make it more representative today out of 543 seats in
India’s parliament 84 (15.47%) are reserved for SC and 47 (8.66%) for ST. Allocation of seats for
scheduled caste and scheduled tribes in the Lok Sabha are made on the basis of proportion of SC
and STs in the State concerned to that of the total population. A similar percentage of exclusive
seats have been provided for members of designated SC and ST in each state legislature. Local
self- government has SC, ST and gender- based reservation system in place.

Reservation in Education: According to Article 21(A), every child should have free education
under the 14 years old. And In the case of education provision relates to non- discrimination in
educational institutions, equal representations, and measures for educational promotions. Article
15 (4) states that “Nothing in this article shall prevent the state from making any special provision
for the advancement of any socially and educationally backward classes for the scheduled caste
and the scheduled tribes”. Article 29 (2) provides protection for admission and against
discrimination in any educational institution maintained by the state or receiving aid out of state
funds on grounds only of religion, race, caste, language or any of them6.

Reservation in Employment: The constitution provides for both appointment and promotion in
the government service. Article 16 (4) empowers the state to make any provision for the reservation
in appointments, or posts in favour of any backward class of citizens. Article 16 (4A) enables the
state to make provision for reservation in matters of promotion to any group or groups of posts in
the services under the state in favour of the Scheduled caste and scheduled tribes. Article 335 states
the claims of the members of the Scheduled caste and scheduled tribes shall be taken into

6
Shrikant Nityanath et al., International Journal of Advanced Education and Research, 222 (vol 2. 2017).

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consideration consistently with the maintenance of efficiency of administration in the making of
appointment of service and posts in connection with the affairs of the union or of a state.

CONCEPT OF SC, ST AND, OBC

❖ Scheduled Caste:

The term ‘scheduled caste’ was coined by the Simon Commission in 1927. During the colonial
period, the SCs were addressed by various terms. Ambedkar termed them as depressed class –
referred to those classes or categories of person who were poor and exploited, and socially and
ritually degraded, whereas Gandhiji called them as Harijans – the children of God. But since the
enactment of the Government of India Act, 1935, they have been generally referred to as
‘scheduled castes’. They are also referred to as ‘dalits’.

After independence, the Constitution of India made a provision (Article 341) specifying the social
groups which were to be treated as SCs by the Government of India and States. As there is no
definition of scheduled castes in the Constitution, according to Article 341(2), “The President may,
with respect to any state or union territory, after consultation with the governor, specify the castes,
races, or tribes which shall for the purposes of the constitution be deemed to be SCs in relation to
that state or union territory”.

The President of India passes orders from time to time specifying the names of SCs in the country.
Earlier, these groups were classified on ritual basis, but now the criteria adopted for the inclusion
in the SCs list are social, economic and educational backwardness, arising out of the stigma of
untouchability. However, a person claiming to be SC should profess either the Hindu or the Sikh
or the Buddhist religion (Muthuswamy and Brinda, 2002).

❖ Scheduled Tribe:

The term ‘tribe’ has never been defined with any scientific precision. Of course, some superficial
and empirical characteristics are attributed to the term, namely homogeneity, isolation and non-
assimilation, territorial integrity, consciousness of unique identify, animism (now defunct), but
religion all pervasive, equity, multi-functionality of kinship relations, segmentory nature of the
socio-economic units, frequent cooperation for common goals etc.

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However, deeper studies pointed out that defining a tribe with such characteristics in the Indian
context is particularly difficult, given the high degree of social and ethnic diversity that exists in
the country and due to frequent interaction between the tribal and non-tribal (Pathy, 1999;
Kosambi, 1965).

It is difficult to list the ethnic features that are common to all Indian tribes since India’s tribal world
exhibits a high degree of diversity. After independence, however, the Commission for Scheduled
Castes and Scheduled Tribes listed common features which tribes shared among themselves.

Criterion for Tribe:

(i) Tribes live away from the civilized world in the inaccessible part lying in the forest hills.

(ii) Tribes belong to one of the three stocks – Negrito, Australoid or Mongoloid;

(iii) The members of a tribe speak the common dialect;

(iv) Tribe practise primitive religion known as animism in which they worship ghosts and spirits;

(v) Tribes follow primitive occupations such as hunting and food gathering;

(vi) Tribes are largely meat eaters;

(vii) Tribes are pleasure seekers – they are fond of food and drinks (SC/ST Commission Report,
1952).

However, not all tribes in India share the above features. In fact, it is extremely difficult to find a
tribe with all above features. There are significant social and cultural differences that exist among
the tribal people in India. Thus, it is difficult to specify the exact features of a tribal society.

After independence, the Constitution of India made a provision (Article 342) specifying the social
groups which were to be treated as scheduled tribes (STs) for official purpose. According to Article
342, “The President may, with respect to any state or union territory and where it is a state, after
consultation with the governor, by public notification, specify the tribes or tribal communities or
parts of, or groups within tribes or tribal communities which shall for the purpose of this
constitution, be deemed to be STs in relation to that state or union territory”.

Unlike SC “a person of the scheduled tribe may profess any religion” (Muthuswamy and Brinda,
2002). In 1971, the list of scheduled tribes contained 527 names. However, within the tribe a
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further distinction was made during the Fifth Five-Year Plan. Those STs which were educationally
and socially more backward and nearly isolated, surviving at pre-agricultural level, and had a
declining or nearly constant population, were placed separately in a list of primitive tribes. There
are 75 such communities in India. Some examples are Jarwa, Onge, Great Andamanese and
Sentinel of Andaman Island.

A person not belonging to SC/ST by birth will not be deemed to be a member of SC/ST by virtue
of marriage with a person belonging to SC/ST. Similarly, a person belonging to SC/ST by birth
will continue to belong to that category even after marriage with a person not belonging to SC/ST.
If a SC person converted to a religion other than Hinduism/Sikhism/Buddhism, reconverts himself
back to these religions, he will be deemed to have reverted to his original SC status, if he is
accepted by the member of that particular caste as one among them.

❖ Other Backward Class:

The term ‘backward classes’, as originally used around 1919 by political leaders, referred to a
section of population which was backward in a socio-economic sense. It did not limit itself to the
matrix of caste. The term ‘backward classes’ encompassed the depressed classes, the aboriginal
tribes and other backward classes (OBCs).

Even the Constitution is not clear about the OBCs. While the constitution clearly says that special
provisions must be made for the SCs and STs, it does not mention the OBCs. It only refers to
“social and educationally backward classes of citizens, in addition to the scheduled castes and
scheduled tribes”. In clause 4 of Article 15 regarding the prohibition of discrimination, it says that
“nothing in this article or clause 2 of Article 29 shall prevent the state from making any special
provision for the advancement of any social and educa-tionally backward classes of citizens or for
the scheduled castes and the scheduled tribes”. Thus, the state is permitted to make provision for
the following: socially and educationally backward classes of citizens; scheduled castes; and
scheduled tribes.

Again, in Article 16 which provides for equality of opportunity in matters of public employment,
the clause 4 says, “nothing in this article shall prevent parliament 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 service under the state”.

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Thus, though Constitution used the qualifying phrase “socially and educationally” in Article 15(4),
the first obstacle before the state was to define backward classes. As SCs and STs are listed on
separate categories, identifying backwardness purely on the basis of caste or Hindu religion was
unjustifiable as groups could be backward in non-Hindu and intermediate caste communities too.

STATUTES AND COMMISSIONS RELATED TO SC, ST AND OBC

❖ Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is an Act of the Parliament
of India enacted to prevent atrocities against scheduled castes and scheduled tribes. The Act is
popularly known as the SC/ST Act, POA, the Prevention of Atrocities Act, or simply the Atrocities
Act.

It was enacted when the provisions of the existing laws (such as the Protection of Civil Rights Act
1955 and Indian Penal Code) were found to be inadequate to check these crimes (defined as
'atrocities' in the Act) Recognising the continuing gross indignities and offences against Scheduled
Castes and Tribes, the Parliament passed the ‘Scheduled Castes and Schedule Tribes (Prevention
of Atrocities) Act 1989.

The preamble of the Act also states that the Act is:

“to prevent the commission of offences of atrocities against the members of Scheduled Castes and
Tribes, to provide for Special Courts for the trial of such offences and for the relief and
rehabilitation of the victims of such offences and for matters connected therewith or incidental
thereto.”

Thus objectives of the Act clearly emphasise the intention of the government to deliver justice to
these communities through proactive efforts to enable them to live in society with dignity and self-
esteem and without fear or violence or suppression from the dominant castes. The practice of
untouchability, in its overt and covert form was made a cognizable and non-compoundable
offence, and strict punishment is provided for any such offence.

The SCs and STs (Prevention of Atrocities) Act, 1989 with stringent provisions was enacted on 9
September 1989. Section 23(1) of the Act authorises the Central Government to frame rules for
carrying out the purpose of the Act. Drawing power from this section, the Scheduled Castes and

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the Scheduled Tribes (Prevention of Atrocities) Rules of 1995 were framed. The rules for the Act
were notified on 31 March 1995.

The purpose of the Act was to help the social inclusion of Dalits into Indian society, but the Act
has failed to live up to its expectations admitted by the Union Minister for Home Affairs in
parliament on 30 August 2010 (quoted below).

❖ National Commission for Backward Classes

National Commission for Backward Classes is a constitutional body (123rd constitutional

amendment bill 2018 and 102nd amendment in constitution to make it constitutional body) (Article
338B of the Indian Constitution) under India's Ministry of Social Justice and Empowerment
established on 14 August 1993. It was constituted pursuant to the provisions of the National
Commission for Backward Classes Act, 1993.

The commission was the outcome of Indra Sawhney & Ors. Vs. Union of India. The Supreme
Court of India in its Judgement dated 16.11.1992 in Writ Petition (Civil) No. 930 of 1990 – Indra
Sawhney & Ors. Vs. Union of India and Ors., reported in (1992) Supp. 3 SCC 217 directed the
Government of India, State Governments and Union Territory Administrations to constitute a
permanent body in the nature of a Commission or Tribunal for entertaining, examining and
recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion
in the list of OBCs. The Supreme Court held that the Constitution recognised only social and
educational — and not economic — backwardness.

The number of backward castes in Central list of OBCs has now increased to 5,013+ (without the
figures for most of the Union Territories) in 2006 as per National Commission for Backward
Classes. In October 2015, National Commission for Backward Classes proposed that a person
belonging to OBC with an annual family income of up to ₹15 lakhs should be considered as
minimum ceiling for OBC. NCBC also recommended sub-division of OBCs into 'backward', 'more
backward' and 'extremely backward' blocs and divide 27% quota amongst them in proportion to
their population, to ensure that stronger OBCs don't corner the quota benefits.

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 ❖ National Commission for Scheduled Castes

The National Commission for Scheduled Castes is an Indian constitutional body established with
a view to provide safeguards against the exploitation of Scheduled Castes and Anglo Indian
communities to promote and protect their social, educational, economic and cultural interests,
special provisions were made in the Constitution. Article 338 of the Indian constitution deals with
National Commission for Scheduled Castes. Article 338 A deals with National Commission for
Scheduled tribes.

History:

The first Commission for Scheduled Castes and Scheduled Tribes was set up in August 1978 with
Bhola Paswan Shastri as Chairman and other four members. Members of the commission includes
a chairman, a vice chairman and four other members.[2] It was set up as a national level advisory
body to advise the government on broad policy issues and levels of development of Scheduled
Castes and Scheduled Tribes. The president of India appoints the chairman of commission. The
fifth schedule of Indian constitution deals with the administration and control of Scheduled Castes
and Scheduled Tribes. Service condition and tenure is determined by president of India. Article
341 deals with notification of Scheduled Castes and Article 342 deals with notification of
Scheduled Tribes.

1. The first Commission was constituted in 1992 with S. H. Ramdhan as Chairman.

2. The second Commission was constituted in October 1995 with H. Hanumanthappa as chairman.

3. The third Commission was constituted in December 1998 with Dileep Singh Bhuria as the
Chairman.

4. The fourth Commission was constituted in March 2002 with Dr. Bizay Sonkar Shastri as the
Chairperson.

5. Consequent upon the Constitution (Eighty-Ninth Amendment) Act, 2003 the erstwhile National
Commission for Scheduled Castes and Scheduled Tribes has been replaced by

(1) National Commission for Scheduled Castes and

(2) National Commission for Scheduled Tribes.

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Functions:

The following are the functions of the commission:

1. To investigate and monitor all matters relating to the safeguards provided for the Scheduled
Castes under this Constitution or under any other law for the time being in force or under any order
of the Government and to evaluate the working of such safeguards

2. To inquire into specific complaints with respect to the deprivation of rights and safeguards of
the Scheduled Castes

3. To participate and advise on the planning process of socio-economic development of the

Scheduled Castes and to evaluate the progress of their development under the Union and any State

4. To present to the President, annually and at such other times as the Commission may deem fit,
reports upon the working of those safeguards

5. To make in such reports recommendations as to the measures that should be taken by the Union
or any State for the effective implementation of those safeguards and other measures for the
protection, welfare and socio-economic development of the Scheduled Castes

6. To discharge such other functions in relation to the protection, welfare and development and
advancement of the Scheduled Castes as the President may, subject to the provisions of any law
made by Parliament, by rule specify.

CONSTITUTION ARTICLES AND AMENDMENTS RELATED TO RESERVATION

❖ Article 15(4) – Special Provision for Advancement of Backward Classes:

Article 15(4) is an exception to clauses 1 and 2 of Article 15, and it was added by the Constitution
(1st Amendment) Act, 1951, as a result of the decision in State of Madras v. Champakam
Dorairajan. In this case, the Madras Government had reserved seats in State Medical and
Engineering colleges for different communities in various proportions on the basis of religion,
caste and race. The state defended the law on the ground that it was enacted with a view to promote
the social justice for all the sections of the people as required by Article 46 of the Directive
Principles of State Policy. The Supreme Court held the law void because it classified students on
the basis of caste and religion irrespective of merit. To modify the effect of the decisions, Article

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15 was amended by the Constitution (1st Amendment) Act, 1951. Under this clause, the state is
empowered to make provisions for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and Scheduled Tribes. After the amendment, it
became possible for the state to put up a Harijan Colony in order to advance the interest of the
backward classes.

❖ Reservation of posts in public employment on the basis of residence (Article 16(3):

Article 16(3) is an exception to clause 2 of Article 16 which forbids discrimination on the ground
of residence. However, there may be good reasons for reserving certain posts in State for residents
only. This article empowers Parliament to regulate by law the extent to which it would be
permissible for a state to depart from the above principle.

❖ Reservation for backward classes in public employment (Article 16(4):

Article 16(4) is the second exception to the general rule embodied in Articles 16(1) and (2). It
empowers the state to make special provision for the reservation in appointments of posts in favor
of any backward class of citizens which in the opinion of the State are not adequately represented
in the services under the State.

❖ Other Articles of Indian Constitution covering the Reservation Policy:

Article 17 talks about the abolition of untouchability and declares its practice in any form to be an
offense punishable under law.

The Social Security Charter of Directive Principles of State Policy under Article 39-A directs the
State to ensure equal justice and free legal aid to Economically Backward Classes and under
Article 45 imposes a duty on the state to raise the standards of living and health of backward
classes.

Articles 330-342 talk about the special provisions for the certain class of people such as Scheduled
Castes, Scheduled Tribes, Anglo –Indians, Linguistic minorities and OBC.

❖ The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019

The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019 was introduced in
Lok Sabha by the Minister of Social Justice and Empowerment, Mr. Thaawar Chand Gehlot on

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January 8, 2019. The Bill seeks to provide for the advancement of “economically weaker sections”
of citizens.

Article 15 of the Constitution prohibits discrimination against any citizen on the grounds of race,
religion, caste, sex, or place of birth. However, the government may make special provisions for
the advancement of socially and educationally backward classes, or for Scheduled Castes and
Scheduled Tribes. The Bill seeks to amend Article 15 to additionally permit the government to
provide for the advancement of “economically weaker sections”. Further, up to 10% of seats may
be reserved for such sections for admission in educational institutions. Such reservation will not
apply to minority educational institutions.

Article 16 of the Constitution prohibits discrimination in employment in any government office.

However, the government can allow reservation for any “backward class of citizens”, if they are
not adequately represented in the services under the state. The Bill seeks to amend Article 16 to
permit the government to reserve up to 10% of all posts for the “economically weaker sections” of
citizens.

The reservation of up to 10% for “economically weaker sections” in educational institutions and
public employment will be in addition to the existing reservation.

The central government will notify the “economically weaker sections” of citizens on the basis of
family income and other indicators of economic disadvantage.

❖ Constitution (93rd amendment) Act, 2006: Provision for Reservation of Backward,

SC and ST classes in private educational institutions (article 15(5):

The new clause 5 provides that nothing in Article 15 or in sub- clause (g) of Clause 1 of Article
19 shall prevent the state from making any special provisions, by law, for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes or the
Scheduled Tribes in so far as such special provisions relate to admission to educational institutions
including private educational institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in Clause (1) of Article 30..

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The above-mentioned amendment has been enacted to nullify the effect of three decisions of the
Supreme Court in TM Pai Foundation v. State of Karnataka7. Islamic Academy v. State of
Karnataka. and P.A Inamdar v. State of Maharashtra. In T.M Pai and P.A. Inamdar case, it had
been held that the state cannot make reservations of seats in admissions in privately run educational
institutions. In Islamic Academy case, it had been held that the state can fix quota for admissions
to these educational institutions but it cannot fix fee, and also admission can be done on the basis
of common admission test and on the basis of merit. This Amendment enables the state to make
provisions for reservation for the above categories of classes in admission to private educational
institutions. The Amendment, however, keeps the minority educational institutions out of its
purview. Article 15 prohibits discrimination on the ground of religion. The evil effect of
reservation is well known. The politicians who claim to take the country to the 21st century for
which higher education is based on merit is essential, is taking a retroactive step in providing
reservation to less meritorious students to private educational institutions. This appeasement policy
of the government may get them some benefit in elections, but it would be harmful to the Nation.

CASE LAWS RELATED TO RESERVATION

1. Indra Sawhney V. Union of India – The Mandal Case:

The 9 Judge Constitution Bench of the Supreme Court by 6:3 majority held that the decision of
the Union Government to reserve 27% Government jobs for backward classes provided socially
advanced persons- Creamy Layer among them are eliminated, is constitutionally valid8. The
reservation of seats shall only confine to initial appointments and not to promotions, and the total
reservations shall not exceed 50 percent. The court accordingly partially held the two impugned
notifications (OM) dated August 13, 1990, and September 25, 1991, as valid and enforceable but
subject to the conditions indicated in the decision that socially advanced persons- Creamy layer
among Backward Classes are excluded. However, the court struck down the Congress
Governments OM reserving 10% Government jobs for economically backward classes among
higher classes.

7
TM Pai Foundation v. State of Karnataka, 1995 AIR 2431.
8
Indra Sawhney V. Union of India, AIR 1993 SC 477.

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After the landmark Mandal case, Article 16(4-A) (through 77th Amendment) and 16(4-B) (through
81st Amendment) were added. According to clause 4-A, 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 service of state in favour of the Scheduled Castes and Scheduled Tribes which in the
opinion of the State, are not adequately represented in the services under the State.” Clause 4-B
seeks to end the 50% ceiling on the reservation for SCs/STs and BCs in backlog vacancies which
could not be filled up in the previous years due to the non- availability of eligible candidates.

2. State of Madras v. Smt. Champakan Dorairajan [1951]:

In the case by virtue of certain orders issued prior to coming into force of the Constitution,
popularly known as ‘Communal G.O.’ seats were apportioned in the Medical and Engineering
Colleges in the State of Madras.

Even after the advent of the Constitution, the G.O. was being acted upon which was challenged by
the Respondent as violative of the fundamental rights guaranteed to her by Articles 15(1) and 29(2)
of the Constitution of India9.

A Special Bench of Seven Judges heard the matter and came to the unanimous conclusion that the
allocation of seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch as the
refusal to admit the respondent notwithstanding her higher marks, was based only on the ground
of caste.

The Supreme Court in the case pointed out that while in the case of employment under the State,
Article 16(4) provides for reservations in favour of backward class of citizens, no such provision
was made in Article 15.

Pursuant to Supreme Court’s order in the case the Parliament intervened amended Article 15 by
inserting Clause (4), which reads:

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.]

9
State of Madras v. Smt. Champakan Dorairajan, (AIR 1951 SC 226).

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3. M.R. Balaji and Ors. v. State of Mysore [1963]:

In this case, in the State of Karnataka, reservations were in force since a few decades prior to the
advent of the Constitution and were being continued even thereafter. The State of Mysore issued
an order under Article 15(4) of the Constitution declaring all the communities except the Brahmin
community as socially and educationally backward and reserving a total of 75 per cent seats in
Educational Institutions in favour of SEBCs and SCs/STs. Such orders were being issued every
year, with minor variation in the percentage of reservations. Later a similar order was issued
wherein 68 per cent of the seats in all Engineering and Medical Colleges and Technical Institutions
in the State were reserved in the favour of the SEBCs, SCs and STs. SEBCs were again divided
into two categories-backward classes and more backward classes10.

Thus, the validity of the impugned order was questioned under Article 32 of the Constitution.

The Five-Judge Bench of the Supreme Court while striking down the said order, enunciated the
following principles:

(1) Article 15(4) is a proviso or an exception to Clause (1) of Article 15 and to Clause (2) of Article
29

(2) For the purpose of Article 15(4), backwardness must be both social and educational. Though
caste in relation to Hindus may be a relevant factor to consider, in determining the social
backwardness of a class of citizens, it cannot be made the sole and dominant test. Christians, Jains
and Muslims do not believe in caste system; the test of caste cannot be applied to them. Inasmuch
as identification of all backward classes under the impugned order has been made solely on the
basis of caste, it is bad.

(3) The reservation made under Article 15(4) should be reasonable. It should not be such as to
defeat or nullify the main Rule of equality contained in Clause (1). While it is not possible to
predicate the exact permissible percentage of reservations, it can be stated in a general and broad
way that they should be less than 50 per cent.

10
M.R. Balaji and Ors. v. State of Mysore, [1963] Suppl. 1 S.C.R. 439.

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(4) A provision under Article 15(4) need not be in the form of legislation; it can be made by an
executive order.

(5) The further categorisation of backward classes into backward and more backward is not
warranted by Article 15(4).

4. M. Nagaraj v. Union of India (2006):

Some key observations that were made by Five-Judge Bench of the Supreme Court in context of
“extent of reservation” are as under:

That the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative efficiency are all
constitutional requirements without which the structure of equality of opportunity in Article
16would collapse.

That with respect to the “extent of reservation” the concerned State will have to show in each case
the existence of the compelling reasons, namely, backwardness, inadequacy of representation and
overall administrative efficiency before making provision for reservation. As stated above, the
impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST
in matter of promotions. However if they wish to exercise their discretion and make such provision,
the State has to collect quantifiable data showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to compliance of Article 33511.

That even if the State has compelling reasons, as stated above, the State will have to see that its
reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or
obliterate the creamy layer or extend the reservation indefinitely.

Subject to above, the Bench upheld the constitutional validity of the Constitution (Seventy-Seventh
Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution
(Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act,
2001.

11
M. Nagaraj v. Union of India, (2006) 8 SCC 212.

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5. I.R. Coelho (Dead) By Lrs vs State of Tamil Nadu & Ors. (2007):

Some of the points concluded by the Nine-Judge Bench of the Supreme Court in the case are
as under:

A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the
basic structure doctrine or it may not. If former is the consequence of law, whether by amendment
of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be
invalidated in exercise of judicial review power of the Court. The validity or invalidity would be
tested on the principles laid down in this judgment.

The majority judgment in Kesavananda Bharati’s case read with Indira Gandhi’s case, requires the
validity of each new constitutional amendment to be judged on its own merits. The actual effect
and impact of the law on the rights guaranteed under Part III has to be taken into account for
determining whether or not it destroys basic structure. The impact test would determine the validity
of the challenge.

All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule
is amended by inclusion of various laws therein shall have to be tested on the touchstone of the
basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article
19 and the principles underlying them12. To put it differently even though an Act is put in the Ninth
Schedule by a constitutional amendment, its provisions would be open to attack on the ground that
they destroy or damage the basic structure if the fundamental right or rights taken away or
abrogated pertains or pertain to the basic structure.

Justification for conferring protection, not blanket protection, on the laws included in the Ninth
Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by
examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be
Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in
Article 21 read with Article 14and Article 19 by application of the “rights test” and the “essence
of the right” test taking the synoptic view of the Articles in Part III as held in Indira Gandhi’s case.

12
I.R. Coelho (Dead) By Lrs vs State of Tamil Nadu & Ors, (1999) 7 SCC 580.

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Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure
then such a law(s) will not get the protection of the Ninth Schedule.

If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be
open to challenge such law again on the principles declared by this judgment. However, if a law
held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule
after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground that it
destroys or damages the basic structure as indicated in Article 21 read with Article 14and Article
19 and the principles underlying thereunder.

CONCLUSION:

The reservation policy in India was adopted with a reason to uplift certain castes who were
subjugated to atrocities, social and economic backwardness due to the prevalent dominance of
caste system in Hindu Society. This reason has somewhere lost its essence in the modern era, and
the castes that should be actually benefitted are not being benefitted, and the others are reaping the
benefits of the reservation system that are actually not meant for it. Today, the reservation system
has just become a tool for politicians to gain vote banks. The recent agitation from the Patels of
Gujarat to include them in the category of OBC was shocking for the entire nation, as the people
who were agitating to get reservations in the state of Gujarat were in no ways socially and
economically backward.

In the State of Tamil Nadu, the reservation system proved to be a havoc for the society wherein
the Brahmans had very cleverly churned themselves down in the league of the backward
bandwagon and had gained enormously from the reservation system. For these possible reasons,
the Creamy Layer has been excluded from the list of Scheduled Castes, Scheduled Tribes and OBC
after the landmark Mandal Case.

In one of the landmark decisions of Ashok Kumar Thakur v. Union of India, Justice Ravindran
smelling the dangers from the present trend on the reservation had rightly opined that when more
people aspire for backwardness instead of forwardness, the Country itself stagnates.

It is quite impossible to declare Reservation policy as good or bad as those benefitting from it
would always support it and declare it to be good while those who are being at a loss because of
the system would always curse it and declare it to be bad. But what matters the most is not that

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whether the reservation policy is good or bad instead what matters is the idea and the reason behind
its adoption. If that reason is losing its essence, then, of course, the reservation policy would
gradually turn out to be bad. The political indulgence in the process of reservation has merely
reduced from a noble idea to a strategy to increase the vote bank. Moreover, a lot of criticism has
been made on the criteria of reservations. The socially and economically backward classes are not
actually in practical and real sense socially and economically backward, the only stamp of being
from a backward caste is enough to gain profits in the name of reservations.

It is also important that the essence of the idea of the adoption of reservation policy should be
maintained, and the actual backward classes who are in real and not fiction denied access to
education, job opportunities etc be benefitted.

This reservation policy should not become a ladder to climb on the stairs of profit, money and
other related interests for those who are just roaming with the stamp of being a backward class and
are actually socially and economically much more stable than the general class.

“The urge to be one among the backward will gradually lead towards the stagnation in the
development of the country.

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BIBLIOGRAPHY

1. www. blog.ipleaders.in

2. M.P. Jain, Constitution of India.

3. www. pib.gov.in

4. P.S. Krishnan, ‘Atrocities against Dalits: Retrospect and Prospect’, Combat Law.

5. Shrikant Nityanath & Dr. SP Melkeri., International Journal of Advanced Education and
Research

6. www.vakilno1.com

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