PART III of The Constitution vis-à-vis Reservation in India

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Introduction

India is a country with vast linguistic and religious groups and is practically a nation with multiple minorities. After extensive debates and discussions for almost three years, our founding fathers arrived at the final draft of The Constitution of India which was enacted on January 26, 1950. One of the most prominent subjects of discussion was the reservation in India. India was shattered into pieces after the end of the British minorities. The constituent assembly for the very first time met on 9th December 1946 and after regime and it became a matter of utmost priority to bring back and compile all those pieces to ensure the growth and development of the nation. The reservation policy is an old age policy which is in practice for decades and holding its origin from the very ancient practice of untouchability and the caste system. This untouchable class was considered to be an impure class or the people having no class. Another practice which the untouchable class had to follow was to remain outside the village and non-inclusion in the social gatherings. Even their shadow in some parts of India was treated a stigma and a symbol of impurity. So it can be said that society was demarcated by the words ‘pure’ and ‘impure’ where the word ‘pure’ includes all the upper-class sections of the society and ‘impurity’ signifies the untouchables and the lowest sections of the society. This prevailing practice of dividing society based on purity and impurity led to the origination of reservation policy in India. To give this class the uniformity in opportunity, the similar status in society, to uplift them socially, to up bring them at par with other sections of society and moreover to bring development in the lower strata of society, were the justifications for the adoption of Reservation Policy in India. Reservation policy in India is a system of reserving a specific percentage of seats for a certain class of people in various government educational institutions, jobs, etc. In this article, the various facets of Reservation in India and the Fundamental Rights guaranteed by our Constitution will be looked upon.

A brief of Pre Independence Reservation Policy:

The history of reservation in India began before independence. For the very first time in 1882, William Hunter and Jyotirao Phule thought of formulating the caste-based reservation system in India. Then in 1902 Shahu, the Maharaja of the princely state of Kolhapur formulates reservation in favor of non-Brahmin and backward classes in the field of education. Thereafter in 1919, during World War I, The Government of India Act, 1919 was laid down which introduced various reforms in Indian Governmental institutions and also addressed the issues of minorities including the development of communal electorates. In 1921 Mysore made the reservation for backward castes after a decade-long social justice movement against the repression of non-Brahmins. The Communal Award was not accepted by Mahatma Gandhi and after the hunger strike by Gandhi, the Poona Pact was signed in Year 1932. In that, it was declared that there would be no separate electorate for Dalits but a reservation within Hindu Electorate. Further the stamping of the provisions of the Poona Pact, 1932 were done in The Government of India Act of 1935 where the reservation of seats for depressed classes was allotted. Also, in 1942 under the membership of Dr. B.R. Ambedkar, Viceroy’s Executive Council suggested an 8.5 percent reservation for Scheduled Castes in civil services.

The Fundamental Rights and Reservation Policy:

The framers of our Constitution have incorporated various articles in The Constitution of India which are specifically dedicated to the reservation for the different groups of people.

1. Article 15[1](3), (4) and (5):  Article 15 Clause (3), (4) and (5) states that the legislature is free to formulate special provisions:

  • For women and children,
  • For the advancement of socially and educationally backward classes of citizens or the Scheduled Castes and Scheduled Tribes,
  • Make provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.

Article 15(3) empowers and enables the state to make special provision for women and    children. The reason is that “women’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence and her physical well- being becomes an object of public interest and care in order to preserve the strength and vigour of the race [2].” Hence, if a government has reserved a specific proportion of seats in an educational institution specifically for women or established an institution especially for women then it would not be a violation of Article 15(1).

Article 15(4) is an exception to clauses 1 and 2 of Article 15. This article was added by The Constitution (First Amendment) Act, 1951 in consequence of the decision in State of Madras v. Champakam Dorairajan[3]  wherein the Government of Madras had reserved seats in State Medical and Engineering colleges for different communities in various proportions on the grounds of religion, caste, and race. The state defended the law on the ground that it was enacted to promote social justice for all the sections of the people as required by Article 46 of the Directive Principles of State Policy. The Apex Court held the law invalid because it classified students on the grounds of caste and religion irrespective of merit. The Court observed that “The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive Act or order, except to the extent provided in the appropriate article in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Parts III and IV have to be understood. However, so long as there is no infringement of any Fundamental. Right, to the extent conferred by the provisions in Part III, there can be no objection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limitations conferred on the State under different provisions of the Constitution.”

The provision under clause (4) of Article 15 is enabling provisions. It is not mandatory rather it is discretionary in nature. It is totally upon the discretion of the state to act if needed by way of making the special provisions for backward classes. The term ‘Backward Classes’ is not defined in the Constitution. However, in the case of Balaji v. State of Mysore,[4]the court held that “The backwardness under Art. 15 (4) must be social and educational. It is not either social or educational, but it is both social and educational. Though caste in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or dominant test. There are certain sections of Indian society such as Christians, Jains, Muslims, etc., who do not believe in caste system, and the test of caste does not apply to them. Moreover, social backwardness is in the Ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically socially backward. Moreover, the occupation of citizens and the place of their habitation also result in social backwardness. In determining the educational backwardness of a class of citizens, the literacy test supplied by the Census Reports is not adequate. The legitimate view to take is that the classes of citizens whose average is well or substantially below the State average can be treated as educationally backward. It is not for this Court to lay down any hard and fast rule in this matter. It is the duty of the State to decide the matter in a manner which is consistent with the requirements of Art. 15 (4).”

The Constitution (93rd Amendment) Act, 2005 inserted clause (5) to Article 15 which states “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.” This provision empowers the reservation with regards to the admissions into the educational institutions both privately operational and those that are aided or unaided institutions but the Minority run institutions are kept outside the scope of clause (5), that is to say that minority run institutions such as Madarsas are exempted. Now here the question arises as to what was the need to insert clause (5) when clause (4) was added in 1951? The answer to this question would be the difference between the two clauses. Where 15(4) provides for the measures for the general advancement of backward classes such as scholarship facilities, scholarship etc., 15(5) on the other hand specifically provides for the special provisions in the sense of reservation in an educational institution.

2. Article 16 – Equality of Opportunity in matters of public employment: Article 16 provides for the equality of opportunity for all the citizens in matters of State employment or appointment. One important aspect of this article is that private organizations are kept outside of their scope. Also, that this fundamental right is guaranteed only to the citizens. Clause (2) of Article 16 prohibits the state from discriminating against any citizen only on seven grounds namely Religion, race, caste, sex, place of birth, residence, and descent. No one can be discriminated on these grounds. This is just to assure that parochialism and nepotism are eliminated in the matters of appointment in government services. ‘Descent’ is another spot for individual discrimination.[5] The state may discriminate on any other ground such as language. For example in judicial service examination where proficiency in a regional language is tested and it is permissible as it does not violates the provisions of Article 16. Further Clause (3) of Article 16 is an exception to clause (2) which prohibits discrimination based on residence. The components of Article 16(3) are that only the Parliament is allowed to make law and not the state legislature, the law must be concerning the employment under the state, the law that prescribes for the residence within a state or Union territory which is before the employment or appointment.

Timeline of Article 16(4):

  • Article 340 empowers the president to appoint a commission to investigate the conditions of backward classes and suggest the measures of their reforms, upliftment, and improvement.
  •  The 1st Backward Class Commission was appointed in 1953 under the chairmanship of Kaka Kalelkar. The Commission was asked to make recommendations as to the necessary steps which must be undertaken by the union or the state to remove difficulties and improve the conditions of the backward class. Also, it was asked to figure out the standards to be adopted to provide concessions to “socially and educationally backward classes” besides the Scheduled Castes and Scheduled Tribes. The Commission was also asked to make a list of such classes. It almost took 2 years for the commission to complete the task. The commission submitted its report in March 1955. As per the report submitted by the committee, nearly 70 percent of the population was considered backward. In 1961, the Centre decided not to formulate any list of OBC’s and the report was rejected.
  • The 2nd Backward Class Commission was established on 1st January 1973 by the government of India. It was appointed by Moraji Desai Government under the chairmanship of B.P. Mandal. That’s why this commission is also known as Mandal Commission. The object of this commission was to identify the conditions regarding the social or educationally backward classes to consider the question of reservation of seats. Committee submitted a report two years later, on December 31, 1980. It was observed that apart from SCs and STs, 52% of the population of India is backward which needs representation. The committee recommended a 27% reservation for SEBCs in addition to the existing 22.5%. So total reservation for SCs + STs + SEBCs = 50%.         
  • Consequences of The Mandal Commission were that in 1990, the then Prime Minister V P Singh declared in the Parliament that the recommendations of the Mandal Commission would be implemented i.e. the 27% Quota for OBC’s. In 1991, Narsimha Rao Government recommends a 10% additional quota for the poor who have no reservation benefit.
  • Indra Sawhney & Others v.Union Of India[6] was a 9 judge bench. This case was popularly known as ‘The Mandal Case’. The court held that 27% for SEBCs is valid. The Court rejected a 10% reservation for the poor and unreserved category. It was directed that the reservation could not exceed 50%, no reservations in promotions. Most importantly the court ordered to exclude creamy layer of OBC’s. It was also suggested that a permanent body be set up which keeps on examining the conditions of backward class.
  • The Consequence of The Mandal Commission was that a permanent body i.e. The National Commission of Backward Class was set up in the year 1993. The main function of the body was to consider exclusion and inclusion from the list of the backward classes for reservation in jobs.
  • The Concept of Creamy Layer was coined in the case of State of Kerala & Anr. v. N. M. Thomas & Ors.[7] By Justice V.R. Krishna Iyer as “In the light of experience, here and elsewhere, the danger of ‘reservation’, it seems to me, is three-fold. Its benefits, by and large, are snatched away by the top creamy layer of the ‘backward’ caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.” A commission was constituted by Central Government under the chairmanship of Justice Ram Nandan Prasad to identify creamy layer among OBC.  There is no concept of creamy layer for SCs and STs. According to the 1993 order, sons and daughters of Group A/Class I Officers of All India Central and State Services (direct recruits), Group B/Class II Officers of Central and State Services (direct recruits), employees of Public Sector Undertakings, etc. and armed forces fall within the creamy layer, and, therefore, they would not be entitled to reservation benefits. The order also included within the creamy layer sons and daughters of people with a gross annual income of Rs. 1 lakh above or possessing wealth above the exemption limit as prescribed under the Wealth Tax Act for a period of three consecutive years. It, however, clarified that income from salaries and agricultural land will not be clubbed, and asserted that the income criteria in terms of rupee will be modified taking into account the change in its value every three years. However, the ceiling has been revised only four times since 1993, the last time it happened was in September 2017 when the cap was raised to Rs. 8 lakh per annum.[8]
  • Further Article 16(4A)[9] was added to the Constitution of India which nullified the recommendations of Indra Sawhney’s Judgment that said there won’t be any reservations in promotions. There will be reservation in promotion but only for SCs and STs who are not adequately represented in Government Jobs. This protection is not made applicable upon OBCs.
  • The Constitution (Eighty First Amendment) Act, 2000 inserted Article 16(4B) which allowed the carry forward rule that was held to be invalid in the case of T.Devadasan v. The Union of India & Anr[10]. Now the reservation may exceed 50%.

Recent Amendments in The Constitution

1. The Constitution (One Hundred and Second Amendment) Act, 2018: 102nd Constitution Amendment Act, 2018 gives constitutional status to the National Commission for Backward Classes (NCBC). Formerly NCBC was a statutory body under the Ministry of Social Justice and Empowerment. It introduced Articles 338B and 342A. Article 338B gives power to NCBC to examine complaints and formulate welfare policies regarding socially and educationally backward classes. Article 342A sanctions President to enumerate socially and educationally backward classes in various states and union territories. He may do this in discussion with Governor of that particular State.

2. Constitution (One Hundred and Third Amendment Amendment) Act, 2019: The recent 103rd  Amendment Act, 2019 added Clause(6) to both  Article 15 and 16 of the Constitution, which would now empower the Parliament and all state legislatures to enact special provisions for the advancement and upliftment of any Economically Weaker Sections of citizens. A maximum of 10% capping on reservation is provided to educational institutions i.e. in private schools and colleges, except those run by minorities. Also 10% of the appointments and posts can now be reserved for the EWS.

3. The Constitution (One Hundred and Fourth Amendment) Act, 2020: This Amendment extended the age capping for terminating of seats for SCs and STs in the Lok Sabha and states assemblies from Seventy years to Eighty years. Also it abolished the reserved seats for the Anglo-Indian community in the Lok Sabha and state assemblies.

Landmark Rulings by Apex Court

1. M. Nagaraj v. Union of India[11], the petitioners challenged the 77th, 81st, 82nd, and 85th Amendments before the Apex Court. Consequently, the Court upheld the Amendments as constitutionally valid. Nevertheless, few conditions were imposed, which made it more difficult to grant reservations promotion. The five-judge Bench upheld the constitutional validity of Reservation in Promotion to SCs/STs. It validated the Consequential Seniority Rule under Article 16(4A), the Carry Forward Rule under Article 16(4B), and the Proviso to Article 335. However, the court noted that Article 164A and 4B are enabling provisions and there is no automatic or inherent right to reservation in promotion for SC/STs. The Court held “that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that backward class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, ‘backwardness’ and ‘inadequacy of representation’. We reiterate 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.”

2. Jarnail Singh & Ors v. Lacchmi Narain Gupta & Ors[12], the Nagraj 2006 judgments was challenged before the Apex Court by various states along with the Centre. It was argued that Nagaraj had made it unjustly difficult to grant reservations in the promotion and the need to review the three mandatory conditions imposed in Nargraj’s Judgment. The Court observed “that there is difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, there is uncertainty on the methodology of this exercise. First and foremost, it clarifies that the Scheduled Castes and the Scheduled Tribes that are notified under Articles 341 and 342 shall be deemed to be backward, which makes it clear that no quantifiable data is necessary to determine backwardness.” Hence, the judgment struck down the ‘further backwardness’ criteria from Nagraj Judgment. Creamy layer exclusion now applies to SCs/STs also. “As the creamy layer in the backward class is to be treated on a par with the forward classes and is not entitled to benefits of reservation, it is obvious that if the creamy layer is not excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equals (forwards and creamy layer of backward classes) cannot be treated unequally. Again, non-exclusion of creamy layer will also be violative of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals. Secondly, to rank them with the rest of the backward classes would amount to treating the unequals equally,”

3. Mukesh Kumar v. State of Uttarakhand[13]A decision was made by state of Uttrakhand that all post of Assistant Engineer (Civil) in Public Works Department, Government of Uttrakhand shall be filled up without providing any reservation in promotion to SCs and STs. In high court it was decided that it is not mandatory for the state to provide reservation in promotion to member of SCs and STs as Article 16(4A) is only an enabling provision. However, the state government was directed to gather quantifiable data with regard to insufficiency of the representation of the SCs and STs in Government services which would enable the State Government to take a decision whether the reservation be provided or not. Contradicting with the view taken by the High Court, the Apex Court explained that “the data to be collected by the State Government is only to justify reservation to be made in the matter of appointment or promotion to public posts, according to Article 16 (4) and 16 (4-A) of the Constitution”. Court further held that Reservation in promotion is not a Fundamental right as Article 16(4A) is only on enabling provision.

Conclusion

The reservation policy in India was established for the upliftment of the marginalized groups. However, actual depiction and representation of these minority groups at every walk of life remains a challenge even after 74 years of independence. While the situation has improvised from what it used to be, there is still a far way to go by the Indian polity to ensure that the harmonious representation of the minority groups is conserved. Reservation is impartial, as far as it provides appropriate positive discrimination for the assistance of the oppressed and economically backward Sections of the society but as soon as it starts to engage the political bias, it should be scrapped away as soon as possible.


[1] The Constitution of India, 1950

[2] Muller v. Oregon 52 L.Ed 551

[3] AIR 1951 SC 226

[4] AIR 1963 SC 649

[5] Dr. J.N. Pandey, Constitutional Law of India 180 (Central Law Agency, 56th edn.,2019)

[6] AIR 1993 SC 477

[7] (1976) 2 SCC 310

[8] Apoorva Mandhani, “What creamy layer is & why Supreme Court kept affluent SC, ST members out of quota benefits”, The Print (ThePrint Essential), December 4, 2019.

[9] Ins. By the Constitution (Seventy Seventh Amendment) Act, 1995

[10] 1964 AIR 179

[11] (2006) 8 SCC 212

[12] Jarnail Singh & Ors v. Lacchmi Narain Gupta & Ors, September 26, 2018

[13]  2020 SCC OnLine SC 148, decided on 07.02.2020

Author: PARTH SINDHWANI

Editor: Kanishka VaishSenior Editor, LexLife India.

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