Project Topic

“Judicial Approach towards Reservation”

Rishi Raj Verma*

VIVEKANANDA INSTITUTE OF PROFESSIONAL

STUDIES (VIPS)
VIVEKANANDA INSTITUTE OF LAW AND LEGAL STUDIES
(VSLLS)
 ACKNOWLEDGEMENT

I owe a great many thanks to people who helped and supported me during the writing of
the research article. Words are inadequate in offering my deep sense of gratitude to my
professor for her absolute guidance.
Without her wise advices, her encouragement and her great efforts to explain things in a
very lucid way, I would not have completed work on time. Hence, I am very grateful to
her.
I know that despite my best efforts some discrepancies might have crept in which I
believe my humble professor would forgive.
Rishi Raj Verma
 Abstract
For Centuries, India’s social system was on inequality, injustice and exploitation. After
the Post-Independence, the framers of the constitution realized about the importance of
social injustice and equality, as they were aware of the issues that had been arising over
the nation on the basis of caste. Reservation is an affirmative action of India that
generally provides the representation of the socially and educationally backward
communities. Various aspects of the issues have been critically analyzed in this research
paper.
 Introduction
In a very simple way reservation is the reserving access to seats in the government jobs,
educational institute to a particular part of the population who are socially and
economically backward.
In the past the British government introduced the elements of reservation in the
Government of India act of 1909. An important one emerged in The Round Table
Conference of June 1932 where British Prime Minister Ramsay Macdonald proposed a
communal award in which a separate representation was provided for the Muslims,
Sikhs, Indian-Christian, Anglo-Indians and Europeans. Other than this the depressed
class consisting of Scheduled Caste and Scheduled Tribes were assigned a number of
seats in which they can vote, also they can vote in another constituency. This was very
controversial proposal and many of the national leaders were opposing it whereas many
of the leader of depressed class like Dr. Bhimrao Ambedkar favored it. After every
single point of negotiations Gandhi made an agreement to have a single Hindu electorate
with Dalits having seats reserved within it, and this agreement came as Poona Pact of
1932.
Post-Independence there were several initiatives taken in the favor of SC/ST and OBC.
These initiatives were taken to discriminate the inequality which were facing by the
depress class either in the form of untouchability or caste discrimination. In 1982 it was
ruled out that 15% seats for SC and 7.5% of seats would be reserved for the government
and educational institute. Later on in 1979 Mandal Commission was set up which had
putted OBC category peoples in the Socially and Educationally backward (SEBC) class
and decided to provide 27% reservation to them in 1990. Now, recently Government of
India announces 10% to EWS (Economic and weaker section) as putting them in socially
and educationally backward classes (SEBC) category.

After Independence, the problem of caste-based discrimination and inequality has

become monstrous. Now it has been institutionalised and is practised in a systematic
way. This is precisely because the oppressed classes tried to gain whatever benefits
reservations could offer them, and started participating in the state apparatuses, though,
to a limited extent.

The sudden change was not acceptable to the oppressors. This situation has been very
well narrated by Ramdhari Singh Diwakar in his novel Dakhil Kharij. 

He narrates the frustration of a savarna man who came to know that the head of the
village panchayat is now a Dalit woman, due to reservation. The man says to himself:
“Kya zamana aa gaya hai! Mahilaaon ko, pichhdon ko aarakshan! Kaha bila gaye
savarna!”
(It’s very surprising. Reservation has been provided to women and the backward
classes! Where are the upper caste people?)
 More irksome for the man was the reaction of the woman who, instead of offering
overwhelming respect to him, like her mother-in-law, said: “Maji, I babu saheb malik
the aapke samay mein, ab nahin hain. Mukhiya main hun gram panchayat ki.” (He
was chief in your times, but not now. The current head of the local body is me.)

According to the famous landmark judgement Indra Sawhney vs Union of India1 1992
the reservation cap cannot exceed for more than 50% as it would violate the equal access
as per the constitution of India. It puts a reservation cap. However, reminding the
following recent judgements the state had exceeded the 50% limit under the litigation of
Supreme court of India. For example, the reservation cap in Tamil Nadu is 69% which
violates the Indra Sawhney case, similarly the Maharashtra reservation cap is 52%.

Article 15(4) of the Indian Constitution states that “Nothing in [article 15] or [clause 2] of
article 29 may prevent the state from making any special provision for the advancement
of any socially and educationally backward class of citizens or of Scheduled caste and the
Scheduled tribes”.
The Supreme court of India in May 2021 decided that according to 102nd amendment any
state government cannot identify socially and educationally backward class under their
state to grant quota for jobs and educational purpose. 102nd amendment 2018 received
the presidential assent and came into effect on August 2018, the amendment inserted
Article 338A and Article 342A. Article 338A deals with the structure and function of the
governing body of NCBC (National Commission of Backward class) and Article 342A
deals with the power of the president to head the NCBC. This amendment gave a
constitutional right to this article.
Recently on January 09, 2019 Parliament in India enacted 103rd amendment which
enabled the state to make reservations in higher education and matter of public
employment on the basis of economic criteria alone. It further states that the upper limit
of EWS reservations will be 10% (meaning up to 10% of seats can be reserved for
citizens falling in the EWS category). This 10% ceiling is independent of ceilings
on existing reservations. Article 16(6) enables the government to make provision for
reservation in appointments.

1
AIR 1993 SC 477, 1992 Supp 2 SCR 454
 JUDICIAL JUDGEMENT IN MARATHA RESERVATION
Recently Supreme court struck down Maratha reservation which was the finding of
Justice NG GAIKWAD committee, it led the enactment of Maratha quota law aside and
set aside the High court judgement which validated the Maharashtra reservation for
Socially and educationally backward Act of 2018. “The 50% rule is to fulfil the
objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facet to
change the 50% limit is to have a society which is not founded on equality but based on
caste rule, The democracy is an essential feature of our Constitution and part of our
basic structure. If the reservation goes above 50% limit…it will be slippery slope, the
political pressure, make it hardly to reduce the same” a five-judge bench headed by
Ashok Bhushan said.
Coming on the background of the case the NG Gaikwad commission suggested 16%
reservation to Marathas and submitted the report to Chief Minister Mr. Fadnavis and he
submitted the report in assembly while representing the bill for approval. Later on, The
Maharashtra State Reservation was challenged in Bombay High Court, while the court
upheld the reservation from 16% to 12%. In Maharashtra total reservation before this
judgement was 52%. It includes SC (13%), ST (7) %, OBC (19%), SBC (2%), Vimukti
Jati (3%), Nomadic Tribes (2.5), Nomadic Tribes (C) Dhangar (3.5) %, Nomadic Tribe
(D) Vanjari (4.5%). Maratha quota had tad taken this reservation cap to 68% which is
now been struck down by the government.

“For how many generations will reservations continue? This may be a beginning;
all reservations may go and only EWS may remain, but these are all policies.  It was
for the Government to take a decision on dismantling caste and reservations.”  These
views were expressed by judges on the constitutional bench of the Supreme Court
while listening to presentations on the booking of Maratha.

Issues related to the Maratha reservation cap

 On readdressing the Indra Sawhney case ruling one of the main problems before
the Constitutional Bench was to scrutinize whether the 1992 landmark case
Indra Sawhney v. Union of India had to be revisited or not?
This is the case in which the Mandal Commission report was upheld and it consigned
two prime paradigms. First the criteria for a group to qualify reservation is social and
educational backwardness. Second, it recapitulated the 50% limit to vertical quotas
reasoning that it was impertinent to ensure ‘efficiency’ in administration. But a count
ensured an exception to this limit in ‘extraordinary circumstances. The court
unanimously decided that there is no limit to readdress the case. The 50% limit albeit
an arbitrary determination by court but it is now constitutionally accepted.
 Whether the Maratha reservation falls under extraordinary circumstances? 
Now, it was decided that there is no need to readdress the Indra Sawhney Case
the court looked at whether the Maratha Reservation falls under
extraordinary circumstances. The court also addressed the Gaikwad commission
report. The Maharashtra government argued that the population of Maratha
Community is 85% and the reservation limit is only 50%, so an increase in reservation
would be justified in extraordinary circumstances. 

The Constitutional Bench differed from the reasoning of state government. The
court said that the Maratha Community is the dominant and mainstream community.
The bench also observed that the MG Gaikwad Commission report too did not
focus only on “extraordinary circumstances”. 

 Whether the state has power to identify by SEBCs and 102nd Amendment?

The 102nd Amendment Act, 2018 gives constitutional status to National

Backward Commission. And this Act provides power to the President to
identify Backward classes. Many states raised their voice against this
amendment to curtail their power. The Constitution unanimously upheld the
Constitutional validity of the 102nd Amendment but took a different view
on whether it curtailed the power of states to identify the Backward class. 

“In the task of identification of SEBCs, the President shall be guided by

the Commission set up under Article 338B; its advice shall also be sought by
the state in regard to policies that might be framed by it. If the commission
prepares a report concerning matters of identification, such a report has to
be shared with the state government, which is bound to deal with it, in
accordance with provisions of Article 338B. However, the final
determination culminates in the exercise undertaken by the President,”
Justice Bhat held.

This Constitutional Bench judgment additionally brings a snapshot of retribution

for different networks, for example, the Patidars in Gujarat, who, in the wake of
a developing trouble because of underlying changes in the economy, have been preparing
for amounts. The Constitution has imagined reservation as an instrument to address
authentic treachery and segregation. Ways should be found to address different sorts of
disappointment and impediment too.

Eventually, a goal to the developing fuss to be proclaimed in reverse may just lie in the
public authority tending to supply side issues in schooling and work. Until further notice,
a tricky piece of the SC decision should be evaluated — three of the five appointed
authorities were of the view that solitary the President will have the ability to distinguish
the regressive classes in a state or UT. The inquiry, who is in reverse, and who gets what
amount, is a significant one. The appropriate response must be found with the cooperation
of states.  

Famous Judiciary Judgements on reservation

 M. Nagaraj V Union of India2

The Supreme court, in its judgment, stated that the government isn't bound to make
a reservation for the SCs and STs regarding promotions. However, if it wishes to
exercise discretion and make such provision, the state has to collect quantifiable
data showing backwardness of a class and inadequacy of representation of that
class in public employment.

 State of Punjab V Hiralal3

The validity of an order made by the Government of Punjab for reservation in

promotion was questioned. Though the High Court upheld the challenge, the Supreme
Court reversed and upheld the validity of the Government order following the
Rangachari case.

 N M Thomas V State of Kerala4

A 7-judge bench upheld the 5:2 majority which was amended by the State of Kerala in
its service rules to grant an exemption to members of SC/STs from appearing in a
departmental examination for promotion.

 Reservation is not confined to an initial appointment: as mentioned in

Rangachari Case5

In this case, the validity of circular issued by the Railway administration providing
for reservation in favour of Scheduled caste/ Scheduled Tribes (by selection) was
questioned.

2
(2006) 8 SCC 212
3
AIR 1977 SC 1777
4
AIR 1976 SC 490
5
AIR 1962 SC 36
 ‘When It Comes to Reservations, the Supreme Court
Needs to Change Its Approach’

The Supreme Court is asking the wrong question of “for how many generations the
reservation will continue” instead they must have asked ‘Will caste be annihilated?
when will caste-based totally discrimination come to an end? Why are the
backward classes not represented within the higher positions
of country services, consisting of the judiciary? Why is reservation no
longer being applied in its letter and spirit? Why backlog vacancies of
these training aren't stuffed in? what's the sanctity of economically weaker sections
[EWS] reservation while economic backwardness was no longer general as a stand-
on my own ground for supplying reservation in Indra Sawhney (1992)? How can the
Union government recruit immediately to higher positions in
civil services via lateral entry, bypassing the constitutional provisions? Why are
public organisations being privatised on this type of huge scale?

In the end, one should not lose sight of the fact that the above analysed statements do
not form part of a judgment, and, thus, are not binding. During hearings, judges do ask
questions of varying nature and make provocative statements to elicit answers from the
arguing counsels. Whether views expressed during the Maratha reservation hearing
imply similar intention or not, will be clear once the judgment is delivered. But,
considering the texture of the above statements, the present anti-reservation
environment and some of the recent problematic verdict of SC, the statements must not
be ignored or read in isolation. They may have far-reaching implications.

Summing up, it is emphasised that the Supreme Court must change its approach with
respect to reservation and see things from the perspectives of the backward classes. It
must not become privy to the arbitrary actions of the government. It must realise that it
cannot shy away from its role in bringing about equality and social justice.