Reservation Policies & Indian

Constitution
 What is the History of Reservations?
• Introduction of English: British required English to the Government
Jobs.
• Tamil Brahmin had the first mover advantage due to their knowledge
of English.
• 3% Tamil Brahmin occupied 80% jobs in Mysore Princely State.
• Kannadiga Brahmins had an extremely low representation in public
services.
• In 1918 the Maharaja of Mysore appointed a committee under the
Chairmanship of Chief Justice C.Miller to investigate and report on the
situation and suggest measures to provide adequate representation to
Depressed Classes.
• Thus Elite was responsible for the introduction of reservations in India.
 Origin of Reservation?
• In 1921 preferential recruitment for backward
communities was instituted formally for the
first time in its colleges and state service.
• Reservation of government jobs for “non-
Brahmin” was introduced for the first time by
the Prince of Mysore Krishna Raje Wadiyar.
• Princely States of Kohlapur & Baroda too
introduced reservation.
 Reservation in Madras Presidency
• The maharaja of Mysore introduced some reforms
with a view to giving a larger share to the Kannadiga
Brahmins, Vokkalligas and Lingayats beside the
untouchable castes and the Muslims.
• Owing to Mysore reservation, Tamil Nadu had a
militant anti-Brahmin movement and also Dravida
Kazhagam started demanding special quotas.
• Conceding their demand, the Madras Presidency
granted reservation in the government jobs and
educational institutions.
 Poona Pact & Reservation
• In the second decades of 20th century Depressed Classes led by Dr. Bhim
Rao Ambedkar demanded reservation and representation.
• Poona Pact was signed in 1932. Interestingly Gandhi Ji did not sign it
and on his behalf Madan Mohan Malviya signed it as representative of
Caste Hindus.
• The Poona pact provided for the increase in the number of reserved
seats(From 78 to 148) as well as adequate representation for the
depressed castes in the central legislatures as well as provincial
legislature.
• Poona Pact was subsequently incorporated in the Indian Constitution.
• Subsequently Dr Ambedkar became member of Viceroy’s Executive
Council and on his proposal for the first time 8.5% seats in central
services were reserved for the Scheduled Castes.
What are the goal of Reservations?
• Society’s Diversity be reflected in all Public
Institutions.
• In United States too, diversity has been
recognised as legitimate consideration in
admissions in higher education.
• To have an egalitarian Society
• Bringing Unequals at the level of Equals
• Reservation promotes Substantive Equality
Rather than mere Formal Equality.
 What are relevant constitutional provisions
on reservation?
• To correct historical wrongs of denial of equality to
certain sections of our population, our
Constitution not only promised justice social,
economic and political and equality of status and
opportunity in the Preamble.
• But also guaranteed right to Equality in Articles 14
to 18 and abolished untouchability in Article 17
and favoured opening of the doors of Hindu
temples for all the sections of Hindus in Article 25.
 What are relevant constitutional provisions
on reservation?
• Constitution Obligation on the State: Article 46:
• The state shall promote with special care the
education 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 exploitation.
 What are relevant constitutional provisions
on reservation?
• Article 335 clearly lays down that the claims of
the members of the Scheduled Castes and the
Scheduled Tribes shall be taken into
consideration,
• consistently with the maintenance of
efficiency of administration, in making of
appointments to services and posts.
 What are relevant constitutional provisions
on reservation?
• National Scheduled Caste Commission: Article 338(89th
Anendment,2003).
• National Scheduled Tribe Commission: Article 338A (89th
Anendment,2003).
• National Backward Class Commission: Article 338B(102nd
amendment,2018)
• To investigate and monitor all matters relating to the safeguards
provided for the Scheduled Castes, Scheduled Tribes & Backward
Classes under the Constitution and law.
• To inquire into specific complaints with respect to the deprivation
of rights and safeguards of the Scheduled Castes;  Scheduled
Tribes & Backward Classes
 Who are SCs & STs?
• Term Scheduled Castes was used in Government of India Act,1935. These castes were
earlier called Depressed Classes.
• Clauses 24 and 25 of Article 366 define Scheduled Castes and Scheduled Tribes.
• Presidential Order of 1951 notified certain castes as SCs and STs.
• SC:15% Reservation
• ST:7.5% Reservation
• Initially, only members of the Scheduled Castes professing Hinduism and four castes
among the Sikhs (Kabirpanthis, Ramdassias, Sikligars and Mazhbis) were included in
the list in accord with the provision made in the Scheduled Castes order appended to
the Constitution.
• In 1956 it was extended to include all Scheduled Castes professing Sikhism.
• In 1990 Scheduled Castes professing Buddhism were also included among the
Scheduled Castes.
• OBC reservation was provided on the implementation of Mandal Commission
• Economically Backward Classes were given reservation in 2019.
 Who are Backward Class of citizens?

• Constitution gives no definition of Backward

class of citizens.
• Article 340: commission to investigate the
conditions of socially and educationally
backward classes.
• First Commission: Kaka Kalekar(1953)
• Second Commission: B.P. Mandal(1981)
• 27% OBC Reservation implemented in 1990.
 Who are Backward Class of citizens?

• No clarity on defining Backward Class

• M.R. Balaji v. State of Mysore(1963): Caste is not sole factor to
determine backwardness.
• State of A.P. v. Balaram (1972):A caste can also be class and that a
caste as such may be socially and educationally backward.
• K.C. Vasanth Kumar v. State of Karnataka(1985):BCs should be
comparable to SCs & STs in Backwardness.
• Indira Swahney v. Union of India(1992): Class not in Marxist sense.
Backward class is wider than socially & educationally backward class.
• Economic Criterion alone cannot be the basis of backwardness.
• Creamy Layer is to be excluded.
 Which was the first important judgment on
reservation?
• The Communal G.O prescribed the ratio by which
government jobs were reserved for Brahmins, Non-
Brahamis, Muslims, Ango-Indians and Christians. It was
finally implemented in 1927. It was this G.O that was
challenged in Champakam Dorairajan.
• In less than year and half of commencement of
constitution as many as ten judges, three of Madras High
Court and seven of Supreme Court struck down reservation
in educational institutions.
• The government had to bring in the First constitutional
amendment to overturn this judgment.
 Which was the first important judgment on
reservation?
• Interestingly Dorairajan who has done BA from Madras University
and was keen to join MBBS course did not even apply. Her
grievance was just speculative.
• The simple argument was that Communal G.O violated
fundamental rights provisions of Article 15(1) and Article 29(2)
that prohibit any discrimination only on the basis of caste,
religion, sex, place of birth or language etc.
• The government defended the reservation on the basis of Article
46.
• The three judges authored three opinions but they were
unanimous in striking down the reservation though for different
reasons.
 Which was the first important judgment on
reservation?
• The State quickly went in appeal to the apex court.
The bench of seven judges led by Chief Justice of India
H.J. Kania too struck down reservation in admissions.
• The Supreme Court too rejected Central Government’s
argument based on Article 46 on the simple logic that
directive principles are not enforceable and cannot
prevail over fundamental rights.
• The court said it in explicit terms that directive
principles “had to conform to and run subsidiary to
the chapter of fundamental rights”.
How the Government Responded to striking
down of reservation?
• There were lot of protests in the southern states as
the result of which the Constitution was amended
for the first time, and Clause 15(4) was inserted
which provides:
• Nothing in this article(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 or for
the Scheduled Castes and Scheduled Tribes.
 How much reservation can be Given?
• No Fundamental Right to reservation
• No time frame or limit provided in the Constitution.
• Supreme Court laid down that ordinarily
reservation should not exceed more than 50%.
• Tamil Nadu has 69%. It is under challenge.
• No Reservation on Religious Grounds. Muslim
Reservation in Andhra Pradesh & Minority
reservation within 27% OBC reservation were struck
down by the courts.
 How was OBC Reservation in admissions
implemented?
• 93rd Constitutional Amendment inserted clause 5 in Article 15.
• (5) Nothing in this article or in sub-clause (g) of clause (1) of article
19 shall prevent the State from making any special provision, 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 their
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.
• Central Educational Institutions(reservation in Admissions)
Act,2006 to provide for 27% reservation in central institutions.
 When was Economic Reservation
introduced?
• 2019: Constitutional amendment: Inserted clause 6 in Article 15
• (6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2)
of article 29 shall prevent the State from making,—
•      (a) any special provision for the advancement of any economically weaker
sections of citizens other than the classes mentioned in clauses (4) and (5); and
•      (b) any special provision for the advancement of any economically weaker
sections of citizens other than the classes mentioned in clauses (4) and (5) in
so far as such special provisions relate to their 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,
• which in the case of reservation would be in addition to the existing reservations
and subject to a maximum of ten per cent. of the total seats in each category.
 Can reservation be given in promotions?

• Yes. Reservation in promotions for SCs/STs had been introduced in April 27, 1978 in

Class I.
• Indian courts have been largely opposed to reservation in promotions and
favored reservation at initial appointment.
• C A Rajendran (1968). In 1963, the government notified that there shall be
no reservation in promotions to Class I and Class II positions, A five-judge Bench
headed by CJI K N Wanchoo upheld this policy.
• Indira Swahney(1992: A nine judge bench said no reservation in promotions in
future but constitution was amended to bring it back in 2000.
• M.Nagraj(2006) state is not bound to provide for reservation in promotion, but if it
wants to do so, it must meet the requirement of collection of quantifiable data on
three facets — backwardness of the class, inadequacy of representation, and the
general efficiency of services being not affected.
• Jarnail Singh(2018): No need for data on backwardness of SCs & STs
 How to improve Reservation Benefits?
• Several Suggestions can be made:
• Those who favor reservations argue that even today all reserved
seats are not filled and caste exploitation still continues.
• Reservation may be given either at admission or job.
• Reservation may not be given at promotions.
• Exclusion of Creamy Layer may be considered for the SCs & STs.
• Reservation benefit may be confined to just one generation.
• Caste Data may be made public and Mandal Commission
Recommendations be reviewed as it relied on 1931 Caste
census.
 What did we learn today?
• Reservation is not negation of equality but the
realization of substantive equality.
• It promotes Diversity.
• There is no Fundamental Right to Reservation.
• There is no constitutionally prescribed upper
limit of reservation.
Next Lecture: Freedom of Speech & Express
 Disclaimer
The views which have been expressed by the speaker in the
lecture are his personal views.