RIGHT TO EQUALITY

HOW CONSTITUTION ENVISIONS EQUALITY ?

Right to equality through Article 15, 16 and 17 were designed specifically for the Indian context, to remedy past
injustices with both negative and positive discrimination provisions.
Undeniably, discrimination on the bases of, inter alia, caste, sex, religion and place or origin was common in pre-
colonial and colonial India. Articles 15 and 16 are designed to remedy this. This is why Article 15(1) states:
(1)The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or
any of them.
And Article 16(1) states:
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office
under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any employment or office under the State.
These two articles are remedial in nature, that is, they seek to remedy, through law, historical wrongs – in this case, the
wrong of discrimination on specific grounds of religion, caste, sex etc.
 ARTICLE 15

Prohibition of discrimination on grounds of

religion, race, caste, sex or place of birth.
 ORIGINAL ARTICLE 15

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or
any of them. In particular, no citizen shall, on grounds only of religion, race, caste, sex or any of
them, be subject to any disability, liability, restriction or condition with regard to
(a) Access to shops, public restaurants, hotels and places of public entertainment, or
(b) The use of wells, tanks, roads and places of public resort maintained wholly or partly out of the
revenues of the State or dedicated to the use of the general public.
(2) Nothing in this article shall prevent the State from making any special provision for women and
children.
 HOW TO INTERPRET 'ONLY'?

Article 15(1) of the Constitution states:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of
them.”
Now consider the following hypothetical: a State instrumentality refuses to hire only Dalit women. It hires both non-
Dalit women and Dalit men on parity with everyone else. So, it does not discriminate on the basis of caste (it hires
Dalits) or sex (it hires women), but upon a combination of both of them. Is there an Article 15 violation?
This issue is commonly known as intersectionality. Intersectionality theory seeks to understand identity as a combination
of multiple and intersecting grounds of race, sex, gender, disability, class, age, caste, religion, sexual orientation, region
etc.

A RT I C L E 1 5 : D O E S I T
RECOGNIZE
INTERSECTIONALITY ?
Article 15 prohibits discrimination on grounds only of… [x, y
and z]… or any of them. The key interpretive issue here is the
role of the phrase “any of them” as adding to or qualifying
“only”.
Whether 'only' should be interpreted to mean that state can
discriminate on basis on a prohibited group with a non-prohibited
classification. For example, sex coupled with competency.
Article 15 prohibits discrimination on sex but not on
competency.
Another interpretation would be that- 'any of them' ensures that
the State cannot get around its obligations by discriminating on
the basis of a prohibited category combined with a non-
prohibited category. It is to read the term “or any of them” as
including a prohibition on intersectional discrimination.
 ARTICLE 15 EXTENDS TO PRIVATE
INDIVIDUALS

Article 14, 15, 16 are understood as vertical rights, which protect against state action.
Whereas, Article 17 is most novel in its conception, as it applies both horizontally and
vertically.
But Article 15(2) is also horizontal in its application. This clause prevents specific location-
based discrimination, by allowing access to public places to all people, who historically were
excluded from places like wells, because of untouchability.
Article 15(2) sounds redundant in its first look today, as no more people are generally
prohibited to use wells, tanks etc. But Supreme Court has given expansive interpretation to
'Shops', to include private educational institutions.
RIGHT TO EQUALITY
&
AFFIRMATIVE ACTION
 GROUP SUBORDINATION THEORY

The group-subordination theory holds that insofar as

our society has been historically rife with
discriminatory forms of injustice, such injustice has
been meted out to groups qua groups – to women, to
“lower-castes”, (at different stages and at different
places) to Hindus or to Muslims.
Insofar as individuals have suffered, they have suffered
by virtue of their membership of these groups
– as women, as Dalits, and so on.
Thus, genuine, substantive equality can be achieved
only by ensuring that historically subordinated groups
are no longer subordinated.
 “Affirmative action” means positive steps taken
to increase the representation of women and
minorities in areas of employment, education, and
culture from which they have been historically
excluded.
When those steps involve preferential selection—
WHAT IS selection on the basis of race, gender, or ethnicity
'AFFIRMATIVE —affirmative action generates intense
ACTION'? controversy.
Reservation or preferential treatment is only one
facet of affirmative action. Other steps can be
scholarships, access to resources and structural
changes to increase the opportunities for
marginalized.
So is it to provide more opportunities OR give
equal opportunities ?
 STATE OF MADRAS VS. SRIMATHI CHAMPAKAM
DORARIRAJAN (1951)

There was a quota system in place for college entrance in Madras in 1950. Four medical institutions and four engineering
colleges were supported by the state. Non-Brahmins were allotted six seats for every fourteen seats available, two for
backward castes, two for Brahmins, two for Harijans, one for Anglo-Indians and Indian Christians, and one for Muslims.

This was based on the Communal Government Order issued by the Province of Madras or Madras Presidency in 1927, just
before independence (Communal G. O.). Reservations based on a person’s caste were used to admit people to government
universities and employment.

The State of Madras claimed that they were allowed to keep and enforce the Communal Government Order because it was
established under Article 46 of the Directive Principles of State Policy to promote the educational interests of Scheduled
Castes, Scheduled Tribes, and other weaker sections of society.

Shrimathi Champakam Dorairajan, a Brahmin, filed a suit in the Madras High Court under Article 226 alleging that her basic
right to admission to the college had been violated. She said that despite her good grades, she was unable to gain entrance to
the Medical College
 1. In case of conflict between Fundamental Rights and Directive
Principles of State Policy, which one will prevail over the other?
ISSUES
2. Whether the Communal Government Order of 1927 was against the
Constitution or not?
Article 29
(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script
or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into 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 them.

Article 15
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth
or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State
funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for women and children
 RATIO

The State made an argument that reservations in educational institutions were justified under Article 46, part of the
Directive Principles of State policy, which required the State to “promote with special care the educational and economic
interests of the weaker sections of the people.”
Whereas Champakam argued that her fundamental rights under Article 29 (2) and 15 (1) are violated. Article 29 (2) provides
that admission in such educational institution cannot be denied only on the ground of religion, caste, race, language or any of
them. Further, it was argued that Article 15 (1) was violated. This article provides that there shall be no discrimination by the
state on the ground of religion, race, caste, sex, and place of birth or any of them. These are the fundamental rights which are
infringed by not allowing her admission in the Medical College, respectively only on the ground of caste which is prohibited
in the fundamental right under Article 16 (2) and 29 (2).
Finally, the court held that Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of
Fundamental Rights. Chapter on Fundamental Rights were sacrosanct, and DPSPs as in Article 37 are expressly made
unenforceable, hence, cannot override the provisions found in Part III.
Also, the court held that the Communal Government Order of 1927 was constitutionally invalid as violative of Article 15 and
29.
 EDUCATION V. EMPLOYMENT

The court pointed out that constitutional framers intended to provide reservation only for employment and
not in education, hence no clause like Article 16(4) is present in Article 15 and 29. It held as follows:
"It may well be that the intention of the Constitution was not to introduce at all communal considerations in
matters of admission into any educational institution maintained by the State or receiving aid out of State
funds. The protection of backward classes of citizens may require appointment of members of backward
classes in State services and the reason why power has been given to the State to provide for reservation of
such appointments for backward classes may under those circumstances be understood. That consideration,
however, was not obviously considered necessary in the case of admission into an educational institution
and that may well be the reason for the omission from Article 29 of a clause similar to clause (4) of Article
16."
Soon, this will be overturned by the first constitutional amendment, but moot point remains-
whether education and employment should be approached differently when it comes to reservation
policy, and whether one of them is more effective than the other ?
 REACTION

Directly in response to the Supreme Court’s judgment, the Constitution was amended to insert
Article 15(4). Article 15(4) reads:
“(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
Article 15(4) suggests that it is an exception to the broad equality provision under 15(1) and
also Article 29 which was raised in Chamapakam case, to allow the government to do something
it could not otherwise do – classify individuals on the basis of sex, race, caste etc., for certain
specific purposes (the advancement of socially and educationally backward classes, i.e., remedial
affirmative action).
 KAKA KALELKAR COMMISSION

The President appointed the First Backward Classes Commission (known as the ‘Kaka Kalelkar
Commission’) under Article 340(1) of the Constitution, which had the mandate of identifying
methods of improving the condition of backward classes.
In 1955, the Kaka Kalelkar Commission submitted its report wherein various factors were identified
in classifying a class as backward. This included:
1. Low social position in the caste hierarchy
2. Lack of educational progress
3. Inadequate representation in government service
4. Inadequate representation in the fields of trade, commerce and industry
Finally, the Commission decided to treat the status of caste as an important factor for this purpose,
and on that basis proceeded to make a list of backward communities.
 DOUBTING 'CASTE' AS MARKER OF BACKWARDNESS

Three of the members of the Commission were opposed the acceptance of caste as a
criterion for determining social backwardness.
In fact, the Chairman of the Commission, Kaka Kalelkar, had second thoughts after
signing the report.
On the eve of submitting the report, Kaka Kalelkar in his covering letter disowned the
report stating that the remedies suggested by the Commission were worse than the evil it
sought to combat since it was once again premised on caste.
He feared that the recommendations would only serve to increase caste consciousness,
loyalties and aspirations in the country and would be unsuccessful in eschewing caste
altogether. He was an eminent follower of the philosophy and methods of Mahatma
Gandhi, that would have played a role in his decision to criticize his own report.
 RECOMMENDATIONS

Though the Commission did not have adequate data on castes, yet it proposed reservation of at
least 25 per cent in Class I, 33.5 per cent in Class II, and 40 per cent in Class III and IV services
for the castes listed as backward.
It recom­mended 70 per cent reservation in the fields of medical, scientific and technical education.
The Commission also recommended the formation of a separate ministry for the welfare of
backward classes.
The Government of India rejected the recommendation of the Commission that caste be the basis
for identifying economic and educational backwardness.
This question would now come up before the Supreme Court in the case of Balaji- whether caste
alone is a maker of social and educational backwardness ?
 M.R. BALAJI V. STATE OF MYSORE
(1962)

In 1962, this issue of determining backwardness arose in the case of M.R. Balaji v. State of Mysore wherein the newly
inserted Article 15(4) was examined by the Supreme Court. . On July 26 1958 the state issued an order that all the
communities excepting the Brahmin community, fell within the classes of educationally and socially backward classes
and schedule castes and schedule tribes 75% seats reserved for them.
Similar orders were issued on 14 May 1959, 9 June 1960, 10 July 1961, but all of them were aside when challenged.
But on July 31 1962 state of Mysore passed another order which superseded all the previous orders and left only 32%
seats for the merit pool. Government fixed 68% reservation for “socially and educationally backward classes” as
required by Art. 15(4). These backward classes were identified on the basis of caste. Also, a classification was made
between "backward" and "more backward" classes of citizens.
This order was challenged by 23 petitioners by writ petition under Article 32. The petitioner said that the classification
made by the state was irrational and reservation of 68% was fraud on Article 15(4) of the constitution. They also
challenged caste as an exclusive indicator for reservation and identifier for social and educational backwardness.
 RATIO

Issues
• Does the exclusion of student from the educational institution on the basis unreasonable reservation criteria which
violates article 15(4) of Indian constitution?
• Whether the state has authority to make reservation on the basis of the caste as “background” and “more
backward”?

Judgment
In this case Supreme Court held the following:
• Reservation cannot be more than 50%.
• The classification of backward and more backward is invalid.
• Caste cannot be the only criteria because Article 15(4) talks about class and class is not synonymous with caste.
So factor such as poverty should be considered.
 CASTE NOT THE SOLE CRITERIA

The court in Balaji acknowledged that caste plays a role in the social superiority and inferiority of people; however, it
cautioned against exaggerating the role of caste. Consequently, although caste may not be an entirely irrelevant
consideration to determine whether a group is a backward class of citizens, caste cannot be the only criteria.
The test of caste was rejected for some other reasons as well – first, caste is inapplicable in many sections of Indian society
which do not recognise the caste system such as Muslims or Christians; and second, the use of caste may be inappropriate
if the end-goal is to eradicate caste itself.
The court held that various factors like occupation, place of habitation and 'sociological, social and economic
considerations come into play in solving the problem and evolving proper criteria for determining which classes are
socially backward'. Hence the classification of backward and more backward was held arbitrary as follows:
"we are not satisfied that the classification of the socially backward classes of citizens made by the State proceeds on the
only consideration of their castes without regard to the other factors which are undoubtedly relevant. If that be so, the
social backwardness of the communities to whom the impugned order applies has been determined in a manner which is
not permissible under Art. 15(4) and that itself would introduce an infirmity which is fatal to the validity of the said
classification."
The Balaji decision was followed in another case originating in the R. Chitralekha
v. State Of Mysore & Ors (1964), which upheld an order of the government that
defined “backwardness” without any reference to caste using other criteria such as
occupation, income and other economic factors. The Court ruled that while caste
may be relevant to determine backwardness, the mere exclusion of caste does not
impair the classification if it satisfied other tests.
However, the shift in the tide soon became apparent. In one case after another, the
Supreme Court began permitting the use of caste as the chief or even sole criteria in
determining backwardness.
 CEILING OF 50%

The five-judge bench of the Supreme Court in Balaji for the first time talked about ensuring that
reservations remained below 50%. Balaji also held that the rights of deserving candidates from other
communities should also be kept in mind. Accordingly, ‘special provisions’ like Article 15(4) and Article
16(4) should be restricted to ‘reasonable limits’. It held as follows:
"While making adequate reservation under Art. 16 (4), care should be taken not to provide
for unreasonable, excessive or extravagant reservation because that would by eliminating general
competition in a large field and by creating widespread dissatisfaction among the
employees, materially affect their efficiency. Like the special provision improperly
made under Art. 15 (4), reservation made under Art. 16 (4) beyond the permissible and legitimate limits
is a fraud on the Constitution."
The Court had held reservations under Article 15(4) and 16(4) to be an ‘exception’ to the formal
principles of equality in Articles 15(1) and 16(1). Since then, various judgments, including Indra
Sawhney have rejected this interpretation. Instead, it is seen as an ‘enabling provision’ to further equality.
 THE SUPREME COURT ON THE 50 % RULE

MR Balaji v. State of Indira Sawhney v. Union of India

Mysore
A 5-judge bench first holds
that reservation should
generally not exceed 50 %
State of Kerala v. NM Thomas
2 out of 5 judges remarked that
50% is not an absolute rule, but
one of caution.
Out of 9 judges, 3 held in favor of
absolute limit and one held rule is not
applicable. Majority of 5 held that
rule is applicable with some
exception.

1962 1963 1975 1985 1992

T Devadasan v, Union of India KC Vasanth Kumar v. State of Karnataka

A 5-judge applies 50% rule to 1 judge held that 50% rule does not apply and
hold that reservation cannot more reservation does not affect efficiency,
be carried forward to the next while one judge said the rule is applicable. 3
year. judges did not make any remark on this.
 BACKGROUND

In T Devadasan v Union of India, the 50% rule was applied to hold ‘carry-forward’ reservations
unconstitutional. This meant that unfilled seats for reserved categories in one year could not be carried forward
to the next year. The 50% rule seemed to have become an accepted constitutional principle.
However, in NM Thomas v State of Kerala, the rule was cast in the shadow of a doubt. A five-judge bench of the
Supreme Court dealt with the question of reservation in promotions. In this case, two judges remarked that the
rule may not apply. Justice Fazal Ali said it was a ‘rule of caution’. If 80% of a State’s population was backward,
then it would not necessarily be unconstitutional to provide for 80% reservations, he noted. Justice Krishna Iyer
agreed and said that the limit cannot be ‘pressed too far’. The other judges did not explicitly deal with the rule,
but the judgment altogether placed it on uneven footing.
In KC Vasanth Kumar v State of Karnataka, two judges were split on the issue. The rule was no longer
absolute.
With this background, when the challenge in Indra Sawhney came, the Court had to put an end to the 50%
ceiling limit issue. Though it will be argued later in Maratha Reservation case that Indra Sawhney was wrongly
decided.
 ORIGINAL ARTICLE 16

16. Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office
under the State
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect or, any employment or office under the State
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of
employment or appointment to an office under the Government of, or any local or other authority within, a State or
Union territory, any requirement as to residence within that State or Union territory prior to such employment or
appointment
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts
in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the
services under the State
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in
connection with the affairs of any religious or denominational institution or any member of the governing body thereof
shall be a person professing a particular religion or belonging to a particular denomination.
WHO IS BACKWARD ?
THE MANDAL COMMISSION AND THE CASE OF INDRA SAWHNEY
 We already read that first commission (Kaka Kalelkar Commission) was not successful and
was not implemented.

On January 1, 1979, the Morarji Desai government chose Bindeshwari Prasad Mandal, a
former chief minister of Bihar, to head the Second Backward Class Commission (Mandal
Commission), which was tasked with, inter alia, determining the criteria for defining the
socially and educationally backward classes.
Mandal submitted his report two years later, on December 31, 1980.

T H E MA N D A L
After an exhaustive survey, the Mandal Commission identified 52% of the Indian population
C O MMI S S I O N A N D as “Socially and Economically Backward Classes” (SEBCs).
ITS
R E C O MME N D AT I O N S
Subsequently, it recommended a 27% reservation for SEBCs in addition to the previously
existing 22.5% reservation for SC/STs.

However, by then, the Morarji Desai government had fallen and Indira Gandhi came to
power and the issue remained in the deep freeze for about a decade.

In 1990, the then Prime Minister V P Singh announced in the Parliament that the
recommendations of the Mandal Commission would be implemented.
 RECOMMENDATIONS

After an exhaustive survey, the Mandal Commission came up with eleven indicators of “social and educational
backwardness,” which, in turn, were grouped into three broad headings – social, economic and political.
Social indicators included castes/classes considered backward by others, caste/classes depending upon manual labour
for their livelihood, castes/classes with low average ages of marriage and castes/classes with a low proportion of female
workforce. Educational criteria included percentages of school attendance, dropouts and matriculation.
Economic criteria included value of family assets, number of families living in kucha houses, distance of sources of
drinking water, and households having taken consumption loans. Social indicators were given three points each,
educational indicators two points, and economic indicators one point.
The total points, therefore, amounted to 22. All castes/classes that had a score of above eleven, were deemed to be
“socially and educationally backward.” The commission then used some further criteria to identify “other backward
classes,” and also from the non-Hindu section of the population.
In the final analysis, the Mandal Commission found that the percentage of OBCs in India was 52%. In the view of the
Supreme Court decision (Balaji) limiting reservation to less than 50%, the Commission recommended a 27% reservation
for OBCs in addition to the existing 22.5% reservation for SCs and STs.
 INDRA SAWHNEY V. UNION OF INDIA

In the year 1990, Prime Minister V.P. Singh announced that his government would implement
reservations on the basis of the recommendations of the Mandal Commission. Two office
memoranda, dated August 13, 1990 and September 25, 1990 sought to enforce these
recommendations.
The decision sparked widespread controversy and led to thousands of students coming out onto
the streets to protest against the decision. These two office memoranda came under challenge
before a nine-judge bench of the Supreme Court. The Supreme Court was to decide whether
the recommendations given by the Mandal Commission could be accepted as correct and
constitutionally valid.
The case is famous for decisively laying down several landmark propositions such as 50%
threshold in reservations, the bar against reservations in certain types of posts, the exclusion of
‘creamy layer’.
 CORAM

On 16th November 1992 this judgement was delivered and the names of the justices who constituted its constitutional bench are as
follows:
• M.H. Kania, CJ
• M.N. Venkatachaliah J.
• S. Ratnavel Pandian J.
• Dr. T.K. Thommen J. (Dissenting judgement)
• A.M. Ahmadi J.
• Kuldip Singh J. (Dissenting judgement)
• P.B. Sawant J.
• R.M. Sahai J. (Dissenting judgement)
• B.P. Jeevan Reddy J.
In a 6:3 majority judgement, the decision of the P.V. Narasimha Rao government to introduce a 27 percent reservation for the SEBCs
based on the Mandal Commission Report was upheld subject to certain conditions.
 ISSUES

Let us look into four main issues among many of the issues that were framed by the Supreme court of
India. They are,
• Whether the ‘creamy layer’ in the society shall be excluded from the current backward class
reservation of 27% or not?
• Whether the reservation under article 16 clause 4 of the Indian Constitution provides reservation only
in the matters of initial appointments and direct recruitment, or does it provide for matters relating to
promotions also or not?
• Can the reservation to backward classes be identified only on the ground of caste or not?
• Lastly, whether the limit of 50% shall be exceeded in any exceptional cases or not?
 CASTE AS A MEANS FOR IDENTIFYING “BACKWARD
CLASSES”

The majority opinion (written by BP Jeevan Reddy for M.H. Kania, M.N. Vekatachaliah, A.M. Ahmadi and
himself) analysed the uses of the terms “caste” and “class” by conducting a detailed analysis of precedent, the Constituent
Assembly Debates and pre-independence history. It further referred to the speech of Dr. Ambedkar in the Parliament at the
time of the First Amendment where he said that backward classes “are nothing else but a collection of certain castes.”
Adopting the same rationale, the majority opinion held that a classification based on caste was constitutionally permissible
since “A caste is nothing but a social class – a socially homogeneous class” and that merely because the word “class” is used
in Article 16(4), it cannot be concluded that it is antithetical to “caste”. Further, given that caste, occupation, poverty and
social backwardness are closely intertwined in our society, the entire caste in many cases, inevitably becomes a socially and
economically backward class.
The concurring opinion of Justice Sawant also proceeded on a similar rationale. He reasoned that if a social group had
hitherto been denied opportunity on the basis of caste, the basis of remedial measures must also be on the basis of
caste. Similarly, the concurring opinion of Justiec S. Ratnavel Pandian held that a determination of “socially and
educationally backward class” beyond the caste label would amount to turning a blind eye to the existing stark reality in
Hindu society.
Thus, with the above opinions, six out of nine judges lent their express approval to the use of caste as a means for identifying
“backward classes”.
 THE DISSENTING OPINIONS

Of the three dissenting opinions, the opinion by Justice R.M. Sahai is the most extensively reasoned. He opined:
First, since the Constitution uses a wider word of “class” and not “caste”, elementary principles of construction dictate
that an interpretation leading to identification of backwardness on the basis of caste ought to be rejected.
Second, empowering the state to make reservation under Article 16(4) on race, religion or caste would amount to
destroying the purpose and object of Article 16(2) and would fall foul of the rule of anti-discrimination on the basis of
caste.
Third, identification based on caste would preclude socially, educationally and economically backward members of
other communities (such as Bhisties among Muslims) from being regarded as backward classes.
On this basis, he opined that utilization of caste as the basis for determination of backwardness is constitutionally
invalid and even ethically and morally impermissible. He advocated for a system of identification of backward classes
that is based on three criteria – occupation (immaterial of whether it is related to caste), social acceptability and
economic criteria
Justice Kuldip Singh agreed with R.M. Sahal and advocated for identification on the
basis of secular collectivity (such as occupation plus income) as opposed to caste
collectivity.
Another dissenter, Justice Thommem held that the Constitution is neither caste-blind nor
caste-prejudiced, but fully alive to caste as one of the relevant criteria to be reckoned in
the process of identification of backward classes of citizens
However, he reasoned that any reservation solely with reference to caste will fall foul of
the rule of anti-discrimination and may result in invidious reverse discrimination.
 SCOPE AND EXTENT OF ARTICLE 16(1) AND ARTICLE 16(4)

The Court considered whether Article 16(4) was an exception to 16(1), or a facet of it. This, is the heart of the jurisprudential
enquiry concerning the meaning of equality that the Constitution commits us to.
The Court stated: “Clause (4) of Article 16 is not exception to Clause (1) of Article 16. It is an instance of classification implicit
in and permitted by Clause (1).”
This, in turn, led the Court to the inescapable conclusion that 16(1) itself permitted reservations. A cursory reading of clauses (1)
and (4) may give us an apparent understanding that clause (4) is the exception to the right to equality of opportunity to all
citizens guaranteed under clause (1) of Article 16. This landmark judgement cleared this significant confusion by announcing
that these two clauses needed to be studied in harmony with each other and that clause (4) is not an exception clause.
Court concluded that relationship between Articles 16(1) and 16(4) as needing a “balance,” which would be drawn by the Court.
The idea of “balance,” thus, came to occupy an uncertain middle ground between the “exception theory” that had dominated the
first twenty-five years of constitutional jurisprudence, and the “facet theory” that had been advanced in N.M. Thomas.
Reservations were now neither exceptions to the rule of equality, nor integral to equality, but had to be “balanced” with formal
equality claims (such as claims to “merit,” as measured by competitive examinations, or the claim of “efficiency in government
services,” as required by Article 335 of the Constitution).
This concept of “balance” has been repeated in judgments after Indra Sawhney. Unfortunately, however, the Court did not—and
still has not—provided either a theoretical justification for this “midway point,” nor precisely articulated w
 CREAMY LAYER

The “Creamy Layer” exclusionary principle is another feat of the majority Bench of Indra Sawhney. By virtue of this principle,
the advanced sections of the OBCs were excluded from the benefits of the reservation. The justification that was provided in this
regard is that when some members of the OBCs have advanced significantly socially (which in the context necessarily means
economically and may also mean educationally), they would be misfits in the class as then the connecting thread between them
and the remaining class snaps.
Hence, to this end, a duty was imposed on the Centre and the states to evolve the said basis for the exclusion of the creamy layer
within a time period of four months and six months, respectively, and to subsequently implement the same. To follow this order,
the government formed the Ram Nandan Prasad Committee to evolve the required criteria for the exclusion of the creamy layer.
It sought to exclude the following:
• “i. Persons holding constitutional posts.
• ii. Class I officers of the All India Centre and State services.
• iii. If both parents are Class II officers, children are not eligible.
• iv. Those with a gross annual income of Rs. 1 lakh and above in the non-governmental sector.
• v. Property holders based on the extent of land holdings.”
 50% CEILING

We discussed before the ceiling rule, which was first stated in Balaji, was then inconsistently applied. Finally, Indra
Sawhney, with nine-bench settled it authoritatively. The court held that the reservations contemplated in Clause (4) of Article
16 should not exceed 50%. The court held that that Clause (4) speaks of adequate representation and not proportionate
representation. Adequate representation cannot be read as proportionate representation. It is relevant to point out that Dr.
Ambedkar himself contemplated reservation being "confined to a minority of seats". No other member of the Constituent
Assembly suggested otherwise.
It is, thus clear that reservation of a majority of seats was never envisaged by the founding fathers. The court held that
the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed
50%, but with exception as follows:
"While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the
great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting
those areas might, on account of their being out of the main-stream of national life and in view of conditions peculiar to and
characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In
doing so, extreme caution is to be exercised and a special case made out."
 RESERVATION PROMOTION

Reservations based on the dominant identifying factor of caste are permissible but should be restricted to
initial appointments only and not for subsequent promotions. Although, without compromising the efficiency
of administration, the States may offer donations, exemptions, concessions, etc. to enable the OBCs to
compete for the advancement of their career. The rationale for the same was given as follows:
"Putting the members of backward classes on a fast-track would necessarily result in leap-fogging and the
deleterious effects of "leap-fogging" need no illustration at our hands. At the initial stage of recruitment
reservation can be made in favour of backward class of citizens but once they enter the service, efficiency of
administration demands that these members too compete with others and earn promotion like all others; no
further distinction can be made thereafter with reference to their "birth-mark", as one of the learned Judges of
this Court has said in another connection. They are expected to operate on equal footing with others. Crutches
cannot be provided throughout one's career. "
 SUMMARY

Scope & Extent of Articles 16(1) and 16(4): Supreme Court held that Article 16(4) is not an exception to Article 16(1) and
it must be read along in the harmony with Article 16(1).
Exclusion of Creamy Layer: The advanced sections among the OBCs (the creamy layer) should be excluded from the list
of beneficiaries of reservation.
Non-applicable to Promotions: Only initial appointments should be subject to reservations; promotions shouldn’t. Any
reservations made for promotions can only be kept for a total of five years (i.e., up to 1997).
Reserved Quota: Except in rare circumstances, the overall reserved quota shouldn’t be higher than 50%. Every year, this
regulation should be followed.
Carry Forward Rule: The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But the criteria of 50% rule
should not be violated in any case.
Statutory Body: A permanent statutory body should be established to examine complaints of over-inclusion and under-
inclusion in the list of OBCs.
 ASHOK KUMAR THAKUR V. UNION OF INDIA (2008)

In 2005, via the 93rd Amendment, Article 15(5) was inserted into the Constitution. It read:
"“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.”
Under the authority of Article 15(5), Parliament passed what came to be known as the Central Educational
Institution(Reservation in Admission) Act. 2006 . The Act laid out the specifics of reservations: simplifying greatly, it
provided, 15% reservation for SCs, 7% for STs, and 27% for OBCs (bringing it up to a total of 49%) per academic year.
This was applicable to “Central Educational Institutions”, that is, institutions that had been set up under a statute, were
financially aided by the government, or were in some other way under the control of the government.
The constitutionality of Act was challenged, and Article 15(5) was challenged as a basic structure violation.
The case was heard by a Constitution Bench, in which unanimously upheld Article 15(5).
Some of the major arguments attacking Article 15(5) focused on how it destroyed the scheme of equality
running through Articles 14-15-16;
how the use of caste to identify “other backward classes” was unconstitutional;
how the exclusion of the creamy layer (following Indra Sawhney) was unconstitutional; and
how the exclusion of Article 30 minority institutions also violated the principle of equality.
On the first issue of violation of basic structure, the bench observed that none of the single unaided private
educational institutions filed a petition challenging that the ninety-third amendment act violates basic structure
of the constitution. The court does not want to enter into the question of whether the ninety-third amendment
act violates the “basic structure” of the constitution with respect to the unaided private education al institutions.
Court left this open for another appropriate case.
The court only dealt with the question of constitutionality of the ninety-third amendment act with respect
to the State maintained institution and aided educational institutions.
For this purpose the Court relied on the judgment in the case of Kesvananda Bharati v Union of
India, wherein the court held that every provision in the constitution can be amended as far as the result
of the amendment does not disturb the basic structure.
The court also held that in this case the principle of equality cannot be defined by one definition, rather it
is a multi-pronged concept. The court stated that principle of equality is very essential for any human
society and this principle is stated in Articles 14, 15, and 16 of the constitution and is considered to be the
element of “basic structure” of the constitution. It may not be subject to the amendment, but it can be
configured in a certain way in which this change must be limited within the border of principle and also
cannot disturb the larger purpose behind the principle.
Hence, the plea regarding unconstitutionality of ninety-third amendment to the constitution could not be
accepted.
 CASTE=CLASS

It was argued that the identification of socially and educationally backward classes had been
done on the basis of caste, and that this was impermissible. After surveying a number of
precedents on the issue the Chief Justice concluded: “Caste” is often used interchangeably with
“class” and can be called as the basic unit in social stratification.”
Specifically, the Chief Justice went on to hold that the identification of OBCs was done through
a variety of socio-economic criteria, and thus wasn’t “solely” on the basis of caste. Or, to put it
more simply, even if certain castes were inserted into the OBC category qua castes, they were a
socially and educationally backward group, and not because they all were part of the same,
defined caste.
 CREAMY LAYER

On the question of accounting for creamy layer in the process, it was noted that if the principle of the “creamy layer”
is not applied in the process of determining the backward class then this exercise of identification is solely based on
“Caste”.
The court held that the creamy layer is introduced for the purpose of excluding some sections of a particular caste
which are economically advanced or educationally forward. Creamy layer is excluded so that there can be a proper
identification of socially and economically backward classes. The court held that non-exclusion of the creamy layer
from SEBCs may violate Article 15(1) of the Constitution.
However, the court also held that the creamy layer is not applicable for the Scheduled Caste (SCs) and Scheduled
Tribes (STs) because SC and ST are separate categories and also the concept of creamy layer is not applicable in the
principle of equality. The concept is applied just to identify socially and economically backward classes.
The Chief Justice then observed:
“By excluding those who have already attained economic well being or educational advancement, the special benefits
provided under these clauses cannot be further extended to them and, if done so, it would be unreasonable,
discriminatory or arbitrary, resulting in reverse discrimination.”
RESERVATION IN PROMOTIONS
 AMENDMENTS TO NULLIFY SUPREME COURT
JUDGMENTS

Parliament made following amendments to nullify the effect of the Court’s judgement in Indra Sawhney. In Indra
Sawhney, a nine-judge Bench had ruled that reservations in appointments, granted to the State by Article 16(4), do not
apply to promotions.
• The Constitution (Seventy Seventh Amendment) Act, 1995 which inserted Article 16(4A);
• The Constitution (Eighty First Amendment) Act, 2000 which added Article 16(4B);
• The Constitution (Eighty Second Amendment) Act, 2000 which inserted a proviso to Article 335;
• The Constitution (Eighty Fifth Amendment) Act, 2001 which added “consequential seniority” for SC/STs under
16(4B).
Article16(4A) enables the State to make any law regarding reservation in promotion for SC/STs.
Article16(4B) provides that reserved promotion posts for SC/STs that remain unfilled, can be carried forward to the
subsequent year. Article 16 (4B) also ensures that the ceiling on the reservation quota capped at 50% by Indra Sawhney
for these carried forward unfilled posts does not apply to subsequent years.
Article 335 mandates that reservations have to be balanced with the ‘maintenance of efficiency’. The 2001 amendment to
Article 335 clarified that the Article will not apply to the State relaxing evaluation standards ‘in matters of promotion’.
 M. NAGARAJ V. UNION OF INDIA,
(2006)
On 19th October 2006, a Constitution Bench while dealing with a bunch of writ petitions under
Article 32 of the Constitution examined the validity of the 77th, 81st, 82nd and 85th Constitution
amendments.
It was urged in the petitions that the impugned amendments had the effect of nullifying the decision
in the case of Indra Sawhney;
Eighty-First Amendment introduced Article 16(4B) which nullified the effect of the decision in R.K.
Sabharwal, in which it was held that carry forward vacancies cannot be filled exceeding 50% of the
posts;
that similarly the Eighty Second Amendment introduced proviso to Article 335 which nullified the
effect of the decision in Indra Sawhney and a host of other cases, which emphasize the importance of
maintaining efficiency in administration
and that the Eighty-fifth Amendment adding the words ‘with consequential seniority’ in Article
16(4A) nullified the decision in Ajit Singh (II).
 RESERVATION IN PROMOTIONS SUBJECT
TO 'CONDITIONS'

The Court validated Parliament’s decision to extend reservations for SC/STs to include promotions (reservation in
promotion). However, the Court also laid down conditions which made it difficult for the Central and State
Governments to grant such reservations.
But the judgement laid down three controlling conditions that the State must meet prior to granting a SC/ST a reservation
in promotion.
 First, the State must show with quantifiable data the backwardness of the class.
 Second, it must show that the class is inadequately represented in the position/service for which reservations in
promotion will be granted.
 Finally, it must show that the reservations are in the interest of administrative efficiency.
It is made clear that even if the State has compelling reasons, 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. In other words, the court extended the creamy layer principle to SCs and STs too in case of promotion.
This was to reverse the decision of Indra Sawhney, which said creamy layer principle does not apply to SCs and
STs.
This will be challenged later in Jarnail judgment.
The Bench held that “the impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow
from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling
reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping
in mind the overall efficiency of the State administration under Article 335.
Reiterating 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 16 would collapse”, the Bench held that “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.”

The Bench added that the “impugned provision” is only “an enabling provision”, and 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 335.”
The Bench made it clear 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”.
 CRITICISM

• The Court laid conditions made it difficult for the Central and State Governments to grant such reservations.
Since these were repetedly challenged and state legislations failed due to quantifiable data reasons.
• Some argue that Nagaraj failed to recognize SC/STs inherent underprivilege, by requiring the State to reassess the
backwardness of SC/STs
• Nagaraj’s critics said that a five-judge panel wrongly and implicitly disregarded a nine-judge bench ruling in
Indra Sawhney, which plainly stated that SCs and STs are homogeneous and cannot be divided.
• Various States had challenged the Nagaraj verdict stating that the criteria for reservation in promotion for SC/ST
employees laid down in it was proving to be a hurdle to filling up lakhs of vacancies in different government
departments spread across various States.
 JARNAIL SINGH V. LACHHMI NARAIN GUPTA (2018)

The current issue arose from an appeal by the State of Tripura against the judgment of the Tripura High Court.
The Tripura High Court had struck down Section 4(2) of the Tripura Scheduled Castes and Scheduled Tribes
(Reservation of Vacancies in Services and Posts) Act, 1991 as being in violation of the three controlling
conditions laid down in Nagaraj.
A Division Bench of the Supreme Court, comprising of Justices Kurian Joseph and R. Banumathi, heard the
appeal and decided to refer the case to a Constitution Bench on 14th November 2017. Various other matters
were tagged to the appeal
The Division Bench called on the Constitution Bench to revisit Nagaraj. It observed that the Bench
in Nagaraj had failed to refer to the earlier EV Chinnaiah case. Further, the Constitution Bench was tasked
with evaluating whether Nagaraj violates Indra Sawhney. The question was whether Nagaraj failed to
recognize SC/STs inherent underprivilege, by requiring the State to reassess the backwardness of SC/STs, and
thereby violated Indra Sawhney?
 NO NEED TO COLLECT QUANTIFIABLE DATA

In 2018, the Constitution Bench in Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors (2018) held that the
2006 Judgment in Nagaraj Case need not be referred for consideration of larger Bench. It was, however, held that the
direction in M Nagaraj, that the state has to collect quantifiable data of backwardness of SCs and STs, being contrary
to Indra Sawhney, was invalid. The other two conditions of M Nagaraj were maintained. In a unanimous judgment
authored by Nariman, it held as follows:
"Insofar as the State having to show quantifiable data as far as backwardness of the class is concerned, we are afraid that
we must reject Shri Shanti Bhushan’s argument. The reference to ―class‖ is to the Scheduled Castes and the Scheduled
Tribes, and their inadequacy of representation in public employment. It is clear, therefore, that Nagaraj (supra) has, in
unmistakable terms, stated that the State has to collect quantifiable data showing backwardness of the Scheduled Castes
and the Scheduled Tribes. We are afraid that this portion of the judgment is directly contrary to the nine-Judge Bench in
Indra Sawhney."
 CREAMY LAYER TEST APPLICABLE

Nariman J. then went on to hold that even though Indira Sawhney had not expressly chosen to apply the creamy
layer principle to Scheduled Castes and Scheduled Tribes, it had always been clear that the principle was a facet of
constitutional equality. He relied upon N.M. Thomas for this principle, relying upon some observations in Krishna
Iyer J.’s concurring opinion, to note that:
"The whole object of reservation is to see that backward classes of citizens move forward so that they may march
hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within
that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as
backward as they always were. This being the case, it is clear that when a Court applies the creamy layer principle
to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles
341 or 342 of the Constitution of India. The caste or group or sub-group named in the said List continues exactly as
before. It is only those persons within that group or sub-group, who have come out of untouchability or
backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. Even
these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those
Lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the
creamy layer within that sub-group is not given the benefit of such reservation."
 CREAMY LAYER TEST: DEBATE

Opponents of reservations in India contend that decades of reservations for SCs and STs had
created a ‘creamy layer’ and that the time has come to exclude their descendants from job quotas.
Other side argues Centuries of discrimination and harmful stereotypes, and denial of opportunities
do not go away if one buys a car or owns a city home.
The theoretical underpinning of the “creamy layer” doctrine is to understand whether equality
under the Indian Constitution equality between individuals, or between groups?
 The matter was subsequently considered by a three-
judge bench in Jarnail Singh-II (2022). A renewed
plea was made by the government that the yardstick
for arriving at the quantifiable data must be laid down
by the Court. The government also requested the
C L A R I F I C AT I O N S
Court to lay down a test for determining inadequacy
of representation. However, the Court held that these
issues were best left to the discretion of the states, as
they depend upon several factors.
 JARNAIL SINGH – II (2022)

In Jarnail Singh – II, the Court clarified that

(i) the yardstick for determining what constitutes “inadequacy of representation” in the services was a
matter of executive discretion;
(ii) determining inadequacy of representation as a pre-condition to granting reservations was mandatory,
and would have to be reviewed on a periodic and “reasonable” basis;
(iii) that the unit of determining inadequacy of representation was the “cadre”, and not the service as a
whole;
(iv) and that the judgment in M. Nagaraj would operate prospectively.
Interestingly, the Supreme Court held that the data collected to determine adequacy of representation should
be periodically reviewed, thereby introducing a requirement not there in M. Nagaraj, and thus ensuring that
reservations, howsoever validly provided initially, do not become cast in stone. The Court, however,
stopped short of laying down an exact period of review, again leaving it to the Governments to decide with
the only caveat being that it should be "reasonable".
JAT RESERVATION
 RAM SINGH V. UNION OF INDIA (2016)

In 1997, in response to numerous petitions, the National Commission for Backward Classes (NCBC) carried out a study,
at the end of which it recommended the inclusion of Jats in the Central List only for two districts of Rajasthan.
Subsequently, in response to numerous representations to review this decision, on 19.7.2011, the NCBC decided to
approach the Indian Council of Social Science Research (ICSSR), asking them to conduct a survey in various states (UP,
Haryana, Madhya Pradesh, Rajasthan, Himachal Pradesh and Gujarat), in order to determine the socio-economic status
of Jats.
NCBC. It is a statutory body, established under the National Commission for Backward Classes Act, 1993. Under S. 9(2),
it is provided that when it comes to inclusion or exclusion from the Lists, “the advice of the Commission shall ordinarily
be binding upon the Central Government.”
At the end of this process, on 26.2.2014, the NCBC submitted a report to the government, stating that “the Jat
Community had not fulfilled the criteria for inclusion in the Central List of OBCs.”
But on 2.3.2014, the cabinet rejected this report, on the ground that it did not take into account “ground realities.” Two
days later, via a notification, Jats were placed in the Central List for the nine states.
 SELF PROCLAIMED BACKWARD ?

A bench of two of tJudges; Justice Nariman and Justice Gogoi declined to accept that the Jat community can
be given a backward status.
The bench held that self-proclamation and claim of a community of backwardness based on perception of
advancement of other classes to seek protection as less fortunate is not constitutionally permissible.
It also noted that no mathematical formula can be devised for grant of backward status but a lot of socio-
economic aspects have to be considered. Judging by all standards, the Court concluded that inclusion of
politically organized classes like Jats cannot be affirmed.
The Judgment also strengthens recommending and binding powers of NCBC in such matters. As the Court
correctly “the advice tendered by the NCBC is ordinarily binding on the Government meaning thereby that the
same can be overruled/ignored only for strong and compelling reasons which reasons would be expected to be
available in writing.”
After a detailed examination of the NCBC’s reasons, court noted that:
"The decision not to recommend the Jats for inclusion in the Central List of OBCs of the States in question
cannot be said to be based on no materials or unsupported by reasons or characterized as decisions arrived at
on consideration of matters that are, in any way, extraneous and irrelevant".
 RELATIVE BACKWARDNESS NOT VALID GROUND

The most important contention of the Jat community was that the community already included in OBCs were
better off than them and they should not be made to compete with general category and how reservation
would better their socio-economic status. This has to be seen in light of Gujjars getting reservation after
protests nationwide. On this court responded as:
"Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis
for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other
inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid
standards we must hold that inclusion of the politically organized classes (such as Jats) in the list of backward
classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have
been so included cannot be affirmed. "
 FOCUS ON EMERGING MARGINSALISED GROUP

The court made a remark that new practices, methods and yardsticks have to be continuously evolved moving away from caste
centric definition of backwardness.
"Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this
Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as
also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who
would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to
be continuously evolved moving away from caste centric definition of backwardness."
For example, the recognition of the third gender as a socially and educationally backward class of citizens entitled to
affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India is too significant a
development to be ignored. It is an important reminder that government must exercise to discover emerging forms of
backwardness.
The court held that owing to historical conditions, particularly in Hindu society, recognition of backwardness has been
associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a
social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste.
MARATHA RESERVATION
 DR JAISHREE LAXMANRAO PATIL V. THE CHIEF
MINISTER (2021)

On July 9th 2014, the State of Maharashtra promulgated an ordinance granting 16% reservation in education and
public employment to the Maratha community. This followed decades of protests for a demand for ‘Maratha
Reservation’. On November 14th 2014, the Bombay High Court issued an interim order staying the ordinance’s
implementation.
Thereafter, Maharashtra enacted the Socially and Educationally Backward Classes Act, 2014. This granted 16%
reservation to educationally and socially backward classes, among whom the Maratha community was counted.
On April 7th 2016, the Bombay High Court stayed the implementation of the Act due to its semblance to the
ordinance.
On January 4th 2017, the Maharashtra state government issued a notification establishing the Maharashtra State
Backward Class Commission. The Commission, chaired by Justice Gaikwad, recommended 12% and 13%
reservation for Marathas in educational institutions and appointments in public services, respectively.
Upon the Commission’s recommendations, Maharashtra passed the Socially and Educationally Backward Classes
Act, 2018 (SEBC Act, 2018) on November 29th 2018. The Act exceeds the recommended quotas, granting 16%
reservation for Marathas in Maharashtra’s state educational institutions and appointments to public service. The
constitutional validity of the Act was challenged before the Bombay High Court by three lead petitions, along
with several other writ petitions.
 CONTENTIONS

The primary arguments in the three lead petitions were:

• The Act is unconstitutional as it exceeds the 50% ceiling limit imposed on reservations by Indra Sawhney v Union of
India.
• The Act provides reservation on the basis of Justice Gaikwad Commission report, which lacks reliable, scientific and
adequate data to justify either the backwardness of Marathas or the extra-ordinary condition of increasing reservations in
Maharashtra from 52% to 68%.
• The Act creates a special class of reservation for Marathas outside the OBC class and violates Articles 14, 16 and 19 of
the Constitution by bestowing them with special benefits.
• The Act encroaches on judicial power by directly overruling the High Court’s 2014 and 2016 orders.
• The Act was passed without complying with procedural requirements mandated by the 102nd Constitution (Amendment)
Act, 2018.
On the other hand, the Maharashtra State Government had contended that extraordinary conditions such as the increase in
number of suicides due to indebtedness and deteriorating incomes among Maratha families justify the enactment of the Act.
 HC UPHELD THE VALIDITY

On June 27th 2019, the Bombay High Court upheld the constitutional validity of the Act. It reasoned that:
• State governments have the power to increase reservation beyond the ceiling limit of 50% in extraordinary
circumstances justified by quantifiable data.
• The Justice Gaikwad Commission report was based on scientific and quantifiable data which adequately
justified both including Marathas as a socially and educationally backward class as well as the extra-ordinary
condition of creating reservations beyond the 50% ceiling limit.
• The State Government did not encroach upon judicial power as it did not directly overrule any court order. It
merely removed the basis of the Court’s earlier order by repealing the 2014 Ordinance and Act.
• The Act meets the test of reasonable classification under Article 14 of the Constitution as it provides
reservation for the newly identified class of Marathas, who have been historically incorrectly denied
affirmative action, without unjustly depriving the existing Other Backward Classes.
• The 102nd Constitution (Amendment) Act, 2018 does not curtail the legislative competency of state
legislatures to give effect to Articles 15(4) and 16(4) of the Constitution through a fair and adequately
effective Commission.
 WHAT IS 102ND CONSTITUTION
AMENDMENT ?

The 102nd Amendment Act of 2018 of the Indian Constitution gave the National Commission for
Backward Classes (NCBC) constitutional validity, allowing the President to notify the list of socially
and educationally backward classes (SEBC) for any state or union territory as the case may be.
Articles 338B and 342A of the Indian Constitution were added as a result of the modification.
Article 342A, states that the President, in collaboration with the Governors of the relevant States,
must notify a list of SEBCs in reference to each State and Union Territory. Once the 'Central List' has
been notified, only Parliament has the authority to add or remove items from the list by legislation.
 ARTICLE 342A

(1) The President may with respect to any State or Union territory, and where it is a State, after consultation
with the Governor thereof, by public notification, specify the socially and educationally backward classes in the
Central List which shall for the purposes of the Central Government be deemed to be socially and educationally
backward classes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward
classes specified in a notification issued under clause (1) any socially and educationally backward class, but
save as aforesaid a notification issued under the said clause shall not be varied by any subsequent
notification.
Explanation: For the purposes of clauses (1) and (2), the expression “Central List” means the list of socially
and educationally backward classes prepared and maintained by and for the Central Government.
 POST MARATHA RESERVATION CASE

(3) Notwithstanding anything contained in clauses (1) and (2), every State or
Union territory may, by law, prepare and maintain, for its own purposes, a list of
socially and educationally backward classes, entries in which may be different
from the Central List.
Added by the 105th Amendment Act.
 SUPREME COURT

The decision of High Court was challenged in Supreme Court, which constituted a Constitution Bench to decide the
issues. The Court framed six questions, which – for the sake of simplicity – can be divided into three main issues.
First, did the 50% cap on reservations (subject to ‘extraordinary circumstances’), as articulated by some of the judges
in the Indira Sawhney judgment, merit reconsideration?
Secondly, was the impugned Act correct in granting reservations to the Maratha community?
And thirdly, following the 102nd Constitutional Amendment, were the several states competent to identify socially and
educationally backward classes within their jurisdictions, or did that power now lie only with the centre?
With respect to the first two issues, the five-judge bench unanimously answered “no”. On the third issue, by a 3:2
majority, the bench found in favor of exclusive central competence (i.e., states can no longer identify SEBCs for the
purposes of reservation).
 PRESUMPTION OF FORWARDNESS

In the judgment striking down Maratha quota as unconstitutional, the constitution bench of the Supreme Court
observed that there is a rebuttable presumption that all communities and castes have marched towards
advancement.
"We have completed more than 70 years of independence, all governments have been making efforts and
taking measures for overall developments of all classes and communities. There is a presumption unless
rebutted that all communities and castes have marched towards advancement".
The 5-judge bench, also comprising Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S
Ravindra Bhat, held that there were no "exceptional circumstances" to justify the grant of reservation to
Maratha community as a Socially and Economically Backward Class(SEBC) exceeding the ceiling limit of
50%.
 ON 50 % RULE

The “50% rule” has caused significant dispute and confusion over the years. The unanimous verdict held that the 50% limit on
reservations should not be reconsidered. The Gaikwad Commission, the Bombay HC judgment or the SEBC Act all fail to lay out an
‘extraordinary situation’ to fall within the exception to this limit. So, the SEBC Act, insofar as it identifies and grants reservations to
Marathas, is struck down.
After elaborately referring to statistics regarding the representation of Marathas in government jobs, the Court held that Marathas
are adequately represented in services.
The Court held that there need not representation proportionate to the population of the community. What is required by the State for
providing reservation under Article 16(4) is not proportionate representation but adequate representation. But the Gaikwad
commission proceeded on the basis of proportionate representation.
The Court held that the mere fact that the percentage of Marathas in engineering, medical, PG courses, higher academic posts and
central services are not proportionate to their population is not indicative of their social and economic backwardness.
"...data and facts which have been collected by the Commission noted above clearly indicate that Marathas are neither socially nor
educationally backward and the conclusion recorded by the Gaikwad Commission on the basis of its marking system, indicator
and marking is not sufficient to conclude that Marathas are socially and educationally backward", the Court said.
 MOVING BEYOND RESERVATION

The Court observed that "Marathas are dominant forward class and are in mainstream of National
Life". It also held that the fact that 85% of the population is backward is not a ground to breach the
50% limitation.
The Court also suggested that it was time to think beyond reservations in public services as the only
means of uplifting the weaker classes.
"Providing reservation for advancement of any socially and educationally backward class in public
services is not the only means and method for improving the welfare of backward class. The State
ought to bring other measures including providing educational facilities to the members of
backward class free of cost, giving concession in fee, providing opportunities for skill development
to enable the candidates from the backward class to be self-reliant", the Court said.
It is interesting that same court upheld EWS reservation a year later, despite its rhetoric to move
beyond reservation.
 NO NEED TO REVIEW INDRA SAWHNEY

The bench also reiterated that the 50% ceiling limit on reservation was based on the principle of equality
under Article 14 and refused to revisit the dictum laid down in the Indira Sawhney case.
"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 which is a reasonable, it will be slippery slope, the political
pressure, make it hardly to reduce the same. Thus, answer to the question posed is that the percentage
of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by
Article 14 of which Articles 15 and 16 are facets", Justice Bhushan's judgment said.
 102ND CONSTITUTIONAL AMENDMENT

On questions of 102nd Constitutional Amendment the court by majority of 3:2 held that it did take away States’ powers to
identify backward classes. Only the President can notify a list that identifies them which Parliament can amend thereafter.
States can only make recommendations.
However, until that notification is published, which should be done expeditiously, the existing setup would continue. The
Amendment also did not violate the basic structure of the Constitution. Justices Bhushan and Nazeer dissented on these
questions. In their view, Parliament did not intend to take States’ powers of identification.
Notably, the Supreme Court's majority verdict was against the stand taken by the Union Government that the 102nd
Constitutional Amendment did not affect the power of the states. The review petition filed by the Union Government seeking
a review of the judicial interpretation given to the 102nd amendment was also dismissed.
Later Lok Sabha passed the Constitution (One hundredth and twenty-seventh amendment) Bill 2021 to restore the power of
State Governments to identify and specify SEBCs. The Centre said that this clarification was necessary to maintain the
"federal structure" of the country.
EWS RESERVATION
 103RD CONSTITUTIONAL AMENDMENT

In January 2019, Parliament enacted the Constitution (103rd Amendment) Act, 2019, which amended Articles 15 and 16
by inserting Articles 15(6) and 16(6) into the equality code of the Constitution and introduced reservation in the spheres
of higher education and public employment for the Economically Weaker Sections (EWS) on the basis of their ‘financial
incapacity.’
Article 15(6) empowers the State to make up to 10 per cent reservation in higher education in both aided and unaided
institutions (except for the ones covered under Article 30(1) of the Constitution), while Article 16(6) enables the State to
make provisions for 10% reservation in public appointments. Articles 15(6) and 16(6), categorically speak of
economically weaker sections of citizens other than the classes mentioned in Articles 15(4), 15(5) and 16(4). Therefore,
the category of EWS arguably excludes the economically weak from Scheduled Castes (SCs), Scheduled Tribes (STs) and
Other Backward Castes (OBCs). This 10% ceiling is independent of ceilings on existing reservations.
Several petitions were filed before the Supreme Court, challenging the constitutional validity of the 103 rd Amendment
Act. The arguments of the petitioners broadly highlighted that reservations cannot be based solely on economic criteria,
and the ceiling of 50 per cent reservation should not be exceeded as was articulated in the Supreme Court’s judgment
in Indra Sawhney v. Union of India (1992).
 JANHIT ABHIYAN V. UNION OF INDIA

The five-judge Constitution bench in Janhit Abhiyan case by majority ( Justices Dinesh Maheshwari, Bela Trivedi and
J.B. Pardiwala) concluded that reservation made exclusively on economic criteria is valid and constitutional. In a 3-2
majority, the Supreme Court upheld the 103rd Constitutional Amendment providing EWS reservation.
Then Chief Justice U.U. Lalit and Justice Ravindra Bhat dissented from the majority view and held that the
Amendment must be struck down as it is discriminatory, because the EWS quota excludes the SC/ST/OBCs and is
meant only for the upper or forward castes.
Supreme Court addressed following issues:
1. Can reservations be granted solely on the basis of economic criteria?
2. Can Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Socially and Economically Backward
Classes be excluded from the scope of EWS Reservations?
3. Can EWS Reservations breach the 50% ceiling for reservations established by the Supreme Court in Indra
Sawhney (1992) ?
 CEILING RULE FLEXIBLE

As per the majority view of Justices Dinesh Maheshwari, Bela M Trivedi and JB Pardiwala, reservation structured
singularly on economic criteria does not violate the basic structure of the Constitution. They have also held that
breach of 50% ceiling limit by EWS reservation does not violate basic structure.
"Reservation is an instrument of affirmative action by State so as to ensure all inclusive approach. It is an
instrument not only for inclusion of socially and educationally backward classes...Reservation for economically
weaker sections of citizens up to ten per cent. in addition to the existing reservations does not result in violation
of any essential feature of the Constitution of India and does not cause any damage to the basic structure of the
Constitution of India on account of breach of the ceiling limit of fifty per cent. because, that ceiling limit itself is
not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of
the Constitution of India." the majority judgment by Justice Maheshwari said.
 REASONABLE CLASSIFICATION

Justice Trivedi in her judgment said that the State has come out with amendment for advancement of EWS categories.
She observed,
"The impugned amendment has to be treated as an affirmative action by the Parliament for the benefit of EWS class. It
cannot be said to be unreasonable classification...Treating EWS as separate class would be a reasonable
classification. Just as equals cannot be treated unequally, unequals cannot be treated equally. Treating unequals
equally violates equality under the Constitution...The amendment creates a separate class of EWS. The exclusion of
SEBCs cannot be said as discriminatory or violative of Constitution."
Justices Trivedi and Pardiwala also made observations in the judgment regarding the need to have a time-span for
reservations.
 NO DOUBLE BENEFIT

At the outset, Justice Dinesh Maheshwari noted that reservation, which was one of the permissible affirmative actions
enabled by the Constitution of India, was an exception to the general rule of equality and hence, could not be regarded as
such an essential feature of the Constitution that it could not be modulated.
Also, the majority judgement largely held that there was a definite logic in exclusion as the backward classes mentioned in
Articles 15(4), 15(5) and 16(4) from the ambit of the newly inserted EWS category by Articles 15(6) and 16(6), so as to
avoid "double benefit" to them; and thus, such exclusion was a part of reasonable classification. Justice Maheshwari, in
his judgement noted–
"As noticed infra, there is a definite logic in this exclusion; rather, this exclusion is inevitable for the true operation and
effect of the scheme of EWS reservation. Obviously, for the reason that those classes are already provided with
affirmative action in terms of reservation, in the wisdom of the Parliament, there was no need to extend them or any of
their constituents yet another benefit in the affirmative action of reservation carved out for other economically weaker
sections. Moreover, the benefit of reservation avails to the excluded classes/castes under the existing clauses of Articles
15 and 16; and by the amendment in question, the quota earmarked for them is not depleted in any manner."
Justice Maheshwari further noted that the amendment made a reasonable classification between "economically
weaker sections" and other weaker sections, who were already mentioned in Articles 15(4), 15(5) and 16(4) of
the Constitution. He stated that the moment there was a vertical reservation, exclusion was vital to provide
benefit to the target group. He added–
"In fact, the affirmative action of reservation for a particular target group, to achieve its desired results, has to be
carved out by exclusion of others. The same principle has been applied for the affirmative action of reservation
qua the groups of SEBCs, OBCs, SCs, and STs. Each of them takes reservation in their vertical column in
exclusion of others. But for this exclusion, the purported affirmative action for a particular class or group would
be congenitally deformative and shall fail at its inception."
The opinion of Justice Maheshwari was concurred with by Justices Bela M. Trivedi and JB Pardiwala. Justice Bela
Trivdei, in her judgement, also stated that treating economically weaker sections of the citizens as a separate
class was a reasonable classification.
 DISSENTING VIEW

In their dissenting judgment however, Chief Justice of India UU Lalit and Justice S Ravindra Bhat said that reservation on economic
criteria is per se not violative. Justice Bhat held that economic criteria can be used to provide reservation in education under Article 15
but not for the purpose of reservation in jobs under Article 16.
"...while the 'economic criteria' per se is permissible in relation to access of public goods (under Article 15), the same is not true for
Article 16, the goal of which is empowerment, through representation of the community", Justice Bhat's judgment stated."
The dissenting opinion clarified that granting benefits to the destitute or economically weaker sections of the society was not
impermissible. However, by excluding the poor among SC/ST/OBC from economically backward classes (on the ground that they
have enjoyed benefits), the 103rd Amendment practices constitutionally prohibited forms of discrimination.
"Destitution and economic poverty are markers of intelligible differentia forming the basis of the classification of which
the impugned amendment is premised, on which ground the constitutional amendment is indefeasible. However, by excluding a large
number of equally poor and destitute individuals based on social backwardness on legally acknowledged class stigmatisation, the
amendment practises constitutionally prohibited forms of discrimination. The overarching principles on which 15(1), 15(2), 16(1) and
16(2) are based on, is that the practice of discrimination is impermissible...Such exclusion strikes at the heart of the equality code,
specifically the non-discriminatory facet."
They said,

"Our constitution does not permit exclusion and this amendment undermines the
fabric of social justice and thereby the basic structure. This amendment is
deluding us to believe that those getting social and backward class benefit is
somehow better placed. This court has held that 16(1) and (4) are facets of same
equality principle. The characterization of excluding the poor of SEBCs is
incorrect. What is described as benefits cannot be understood as free pass, it is a
compensatory mechanism to reparate...The exclusion is based on social origin
which destroys the equality code."
 DISCRIMINATORY CLASSIFICATION

Justice Bhat stated that the application of the doctrine of classification differentiated between the poorest
sections of the society– one segment which consisted of the poorest of forward classes and other, the
poorest who were subject to additional disabilities due to caste stigmatisation.
He stated that the amendment was keeping the latter out of the new reservation benefit by making us
believe that those getting social and educational backwardness based reservations were somehow more
fortunate.
This classification, as per Justice Bhat, was clearly "contradictory to the essence of equal opportunity."
Regarding the question on whether the State could make provisions for reservations for admission in
private, unaided institutions, Justice Bhat and CJI UU Lalit's opinion concurred with the majority.
 GHOST OF CHAMPAKAM

Justice Bhat stated that caution had to be exercised in dealing with the issue pertaining to the 50% ceiling
limit as the breach of 50% limit was the principal ground of attack to the 76th Constitutional Amendment,
1994, which had been challenged in a batch of petitions pending before the Supreme Court. he added–
"The view of the members constituting this bench on the creation of another class which can be the recipient
of up to 10% of reservations over and above 50% permitted under Article 15(4) and 16(4), in my
considered opinion, therefore has a direct bearing on the likely outcome in the challenge in that case."
Therefore, while exercising caution in that regard, Justice Bhat stated that permitting the breach of the 50%
rule become "a gateway of further infractions which in fact would result in compartmentalisation." He
added–
"The rule of equality would then be reduced to the right of reservation, leading us back to the days of
Champakam Dorairajan. In this regard the observations of Ambedkar have to be kept in mind that
reservations are to be seen as temporary and exceptional or they could eat up the rule of equality."
IS RESERVATION AGAINST MERTIOCRACY ?
 NEIL AURELIO NUNES AND ORS. V. UNION OF
INDIA(2023)

The All-India Quota (AIQ), which provides domicile-free, merit-based seats to medical students, was created by
the Supreme Court in 1986. Several State governments began reserving a large proportion of seats in medical
colleges for students domiciled in their own states, excluding students from other states. Therefore, in Dr. Pradeep
Jain v Union of India (1986), the SC placed a cap on the proportion of undergraduate (UG) and postgraduate (PG)
seats that a State government can reserve for domicile students in medical colleges. The unreserved seats formed
the AIQ.
The lingering question, however, was whether the Union government could provide other kinds of reservation (for
SC/STs, OBCs, EWS, women and persons with disabilities) in the AIQ. In 2003, the Court clarified in three
separate Judgments that the Union government was not obligated to provide reservations in AIQ seats. Then,
in Abhay Nath v University of Delhi (2006), the SC held that 22.5% reservation (15% for Scheduled Castes and
7.5% for Scheduled Tribes) should be included in AIQ.
While most State Government colleges have reservations for students from the Other Backward Classes (OBCs)
for admissions under the State quota, this reservation did not apply to those falling under the AIQ. Many States,
particularly Tamil Nadu, took issue with this. They demanded the implementation of OBC student reservations
within the AIQ as well.
The current dispute arose in 2021. On July 29th 2021, the National Testing Agency issued an
admissions notice providing for 27% reservation for OBC students and 10% reservation for
Economically Weaker Sections (EWS) students admitted under the AIQ, for both UG and PG
medical courses.
The petitioners argue that the 2021 Admissions Notice violates their fundamental rights, and
amounts to ‘reverse discrimination’. They argue that the added reservation on the AIQ crosses
the 50% limit on reservations laid down in Indra Sawhney v Union of India (1992).
One group of petitioners focus solely on the EWS reservations. They note that the challenge to
the Constitution (One Hundred and Third Amendment) Act, 2019, is still pending before the
Supreme Court. That petition challenges the introduction of a new category of reservation like
EWS, enabling reservations in higher education and public employment on the basis of
economic status. The petitioners also argue that the annual income limit of ₹8 lakh as a criteria
to determine EWS status is arbitrary.
 ISSUES

• Can reservations for OBCs and EWS in the AIQ be permitted?

• Can the executive decide to reserve seats in the AIQ—a category of seats created by the Supreme
Court?
• Is the Union government’s ₹8 lakh annual income limit to determine EWS status in the forward
castes reasonable?
• Is the ₹8 lakh annual income limit based on reliable and contemporary data of economic
backwardness?
• Whether the very concept of the reservation to the OBC community in AIQ Quota in PG NEET
compromises with merit and is detrimental to national interest?
 RESERVATION IS NOT ANTITHETIC TO MERIT

On January 7th 2022, yet to hear detailed arguments on the validity of the EWS reservations scheme,
Justices D.Y. Chandrachud and A.S. Bopanna delivered an Order to facilitate the quick completion of
examinations. They stated that reservations were permissible within the All India Quota and could be
notified by the Executive without the Supreme Court’s prior permission.
The Bench dismissed the challenges against OBC, noting that reservation is not antithetic to merit.
One of the arguments raised by the petitioners was that there cannot be reservation in post-graduate
courses and that the PG admissions must be solely merit-based. Rejecting this contention, the Court
upheld the constitutional validity of reservation for OBC candidates in the AIQ seats for UG and PG
medical and dental courses. The court held that backwardness does not simply disappear because a
candidate has a graduation degree. A graduation degree cannot create parity between forwarding class
and backward class even if it makes the graduate with economic mobility.
 WHAT IS 'MERIT' ?

To approve 27% OBC reservation in All India Quota, a bench comprising Justice DY Chandrachud
and Justice AS Bopanna provided the following reasons :
(i) Articles 15(4) and 15 (5) are not an exception to Article 15 (1), which itself sets out the principle of
substantive equality (including the recognition of existing inequalities). Thus, Articles 15 (4) and 15 (5)
become a restatement of a particular facet of the rule of substantive equality that has been set out in
Article 15 (1);
(ii) Merit cannot be reduced to narrow definitions of performance in an open competitive examination
which only provides formal equality of opportunity. Competitive examinations assess basic current
competency to allocate educational resources but are not reflective of excellence, capabilities and
potential of an individual which are also shaped by lived experiences, subsequent training and individual
character.
(iii) High scores in an examination are not a proxy for merit.
Relevant observations from the judgment on merit are given below
"The crux of the above discussion is that the binary of merit and reservation has now become
superfluous once this Court has recognized the principle of substantive equality as the
mandate of Article 14 and as a facet of Articles 15 (1) and 16(1). An open competitive
exam may ensure formal equality where everyone has an equal opportunity to participate.
However, widespread inequalities in the availability of and access to educational facilities
will result in the deprivation of certain classes of people who would be unable to
effectively compete in such a system. Special provisions (like reservation) enable such
disadvantaged classes to overcome the barriers they face in effectively competing with
forward classes and thus ensuring substantive equality. The privileges that accrue to
forward classes are not limited to having access to quality schooling and access to
tutorials and coaching centres to prepare for a competitive examination but also includes
their social networks and cultural capital (communication skills, accent, books or
academic accomplishments) that they inherit from their family
 UG V. PG DISTINCTION

One of the arguments raised by the petitioners was that there cannot be reservation in post-graduate courses
and that the PG admissions must be solely merit-based. Rejecting this contention, the Court upheld the
constitutional validity of reservation for OBC candidates in the AIQ seats for UG and PG medical and dental
courses.The bench in the case observed,
"In our opinion, it cannot be said that the impact of backwardness simply disappears because a candidate
has a graduate qualification. Indeed, a graduate qualification may provide certain social and economic
mobility, but that by itself does not create parity between forward classes and backward classes. In any
event, there cannot be an assertion of over-inclusion where undeserving candidates are said to be benefitting
from reservation because OBC candidates who fall in the creamy layer are excluded from taking the benefit
of reservation. Thus, we find that there is no prohibition in introducing reservation for socially and
educationally backward classes (or the OBCs) in PG courses."
Article 15(5) does not make any distinction between UG and PG Courses
Having decided that seats in the All India Quota can be reserved for
OBC candidates in January 2021, the SC will decide whether the
Union government’s ₹8 lakh annual income criteria for determining
EWS status in the forward castes is constitutional.
DEBATE
 A DALIT WOMAN'S DISSENT TO RESERVATION

Dakshayani Velayudhan was the First & only Dalit Woman

in India’s Constituent Assembly. She refused “to believe that
70 million Harijans are to be considered as a minority” and
argued that “reservations would not be in the best interests of
them”

In an impassioned speech delivered in August 1947, Dakshayani

said:
“As long as the Scheduled Castes, or the Harijans or by
whatever name they may be called, are economic slaves of other
people, there is no meaning demanding either separate
electorates or joint electorates or any other kind of electorates
with this kind of percentage. Personally speaking, I am not in
favour of any kind of reservation in any place whatsoever.”
Reservation is not a policy of Dalits v. non-Dalits; it is only a policy which has opponents and proponents
on both sides.
Ambedkar was not representative of whole Dalit community, nor was Velayudhan.
Hence, any debate on reservation should not create a binary of pro or anti-Dalits, but the important
question to ask is:
1. Whether affirmative action through education or employment brings about social change along with
economic opportunities ?
2. How can we measure social and educational backwardness of a community ?
3. Whether social and economic backwardness have different consequences and hence need different
level of protection ?
4. How intersectional identities can be taken into account in reservation ?
5. Whether the mathematical and statistical tool analysis of population v. representation tell us the 'real'
story of backwardness ? Whether occupation and proportional representation is best way to measure
backwardness of a 'community' ?
6. What are inherent limitation to any quantitative study on backwardness for matters of promotion ?