Reservation in India

Reading time: 8 minutes

Contents-

  1. What is the meaning of reservation
  2. Purpose of reservation
  3. The extent of reservation in India
  4. SC/ST Reservation
  5. OBC Reservation
  6. EWS Reservation
  7. History of Reservation in India
  8. Does India need reservation now (discussion)
  9. Is reservation the only solution?
  10.  Will reservation compromise the merit system?

What is meant by reservation or affirmative action?

Reservation is the action of reserving something.

Reservation in India is all about reserving access to seats in government jobs, educational institutions, and even legislatures to certain sections of the population.

Reservation has been backed by the Indian Constitution by means of various amendments, as affirmative action, it can be seen as positive discrimination. The above-stated reservation in India is backed by the government of India.

Purpose of reservation in India

The following are the 2 main purposes of Reservation of India

  1. Advancement of backward classes like Scheduled Castes (SC) and the Scheduled Tribes (ST) OR any other social backward or educationally backward classes of citizens of India (Eg: OBC) OR economically weaker sections (EWS) – Article 15 (4), Article 15 (5), and Article 15 (6) of the Indian Constitution
  • Adequate representation of any backward class of citizens OR economically weaker sections (EWS) in the services under the State. – Article 16 (4) and Article 16 (6)

The extent of Reservation in India

In India, reservation is provided in:

1) Government Educational Institutions (like IITs, IIMs etc.) – as per Article 15 – (4), (5), and (6) of the Indian Constitution

2) Government Posts (like Indian Administration Services, Indian Police Services etc.) – as per Article 16 – (4) and (6) of the Indian Constitution

3) Legislatures (Parliaments and Stae Legislatures) – as per Article 334 of the Indian Constitution

Before 2019, the reservation was provided mainly on the basis of social and educational backwardness (caste). However, after the 103rd constitutional amendment in 2019, economic backwardness is also considered.

Apart from the reservation quota, additional relaxations like upper-age relaxations, additional attempts, and lower cut-off marks are also provided for various reservation categories

Reservation quota in India for Government Jobs

A vacancy reserved for SCs or STs or OBCs cannot be filled by a candidate other than an SC or ST or OBC candidate, as the case may be.

As seen from the above table, about 60% of seats are reserved in India – for various sections like ST, SC, OBC, and EWS – with respect to Government jobs and Higher Education Institutions. 3% of seats are also reserved for differently-abled persons across all categories.

This also means that only 40% of seats are available under merit. The seats that can be gained in the basis of merit does not only belong to general category candidates but the other categories who already have seats reserved for them like the SC, ST, OBC and EWS can also compete in that category for the respective seat.

SC/ST Reservation

The objective of providing reservations to the Scheduled Castes (SCs), Scheduled Tribes (STs) in services is not only to give jobs to some persons belonging to these communities. It basically aims at empowering them and making sure that they are also involved in the decision-making process of the state.

Besides, the state is also keen to end practices such as untouchability.

Scheduled Castes (SC) are given 15% quota in jobs/higher educational institutions while Schedule Tribes (ST) are given 7.5% quota in jobs/higher educational institutions.

Reservation is provided not only with respect to direct recruitment but also with respect to promotions for SC/ST category (Article 16(4A)). As the reading of Article 16 (4A) suggests, the State Government is required to collect quantifiable data to check the adequacy of representation of the SCs/STs in public services in their state, and it is then upon this data that the government decides whether reservation is required to be given or not.

There is no concept of ‘creamy layer’ with respect to SC/ST reservation. This means that irrespective of the income status or the government posts held by the parents, children of SC/ST parents will get SC/ST Reservation.

OBC Reservation

Reservation for Other Backwards Classes (OBC) was introduced based on the Mandal Commission Report (1991). The quota for OBCs is 27% in government jobs and higher educational institutions.

However, there is a concept of ‘creamy layer’ with respect to the OBC reservation. Only those from OBC who comes under Non-Creamy Layer would get OBC reservation.

The creamy layer concept brings income and social status as parameters to exclude some of the privileged members of OBC from the extent of reservation. This concept also keeps a check to ensure that the benefits of reservation do not get extended to subsequent generations.

Do you belong to Other Backward Classes (OBC)? What is the OBC reservation eligibility?

Non-Creamy Layer candidates from OBC are entitled to reservations in jobs as well as educational institutions. However, many candidates (and even some bureaucrats) are ignorant about the provisions of the OBC reservation.

If you are a deserving candidate belonging to the OBC category, you should not miss the benefits of an OBC reservation (due to ignorance). In this post, we shall see the criteria for determining whether you fall under OBC Creamy Layer or OBC Non-Creamy Layer.

Other Backward Classes (OBC)

Other Backward Classes (OBC) are socially and educationally backward classes in India. OBCs are distinct from Scheduled Classes (SC) or Scheduled Tribes (ST).

The Central Government of India maintains a list of castes/communities to be considered as OBC.

Benefits of being included in the OBC list:

To uplift Other Backward Classes (OBC), both the Central Government and State Governments are running a lot of programs and schemes. Some benefits include:

  • 27% Reservation Quota with respect to the seats in Government Jobs (like IAS, IPS etc) and Government institutes (like the IIMs and IITs).
  • There is relaxation with respect to the upper age limit for various examinations like UPSC Civil Services Exam.
  • There is relaxation with respect to the number of attempts for exams.
  • There is relaxation with respect to cut-off marks (only lower cut-off marks are usually needed to clear exams).

Will all OBCs get the reservation benefit?

No.

Only if you belong to Non-Creamy Layer OBC, you will get the reservation in jobs as well as in educational institutions. If you fall under the Creamy Layer of OBC, you will not get the benefit of an OBC reservation.

Origin of Creamy Layer concept with respect to OBC

Due to the recommendations of the Mandal Commission, the Central Government issued an Office Memorandum to reserve 27% posts in central government services. The order was challenged by Indra Sawhney (Indra Sawhney and Others Vs Government of India) in Supreme Court (1992).

The constitutional bench of the apex court upheld the decision to reserve 27% reservation for OBC’s in Central Government service. But in the verdict, Honorable Supreme Court cleared that the creamy layer among OBC’s should be excluded from the reservation.

Central Government constituted a commission chaired by Justice Ram Nandan Prasad to identify the creamy layer among OBC’s. The commission recommendations were as such approved by the Central Government.

Based on this, the Central Government issued an order regarding the guidelines and criteria for excluding Creamy Layer among OBC. The same criteria and guidelines are still in force for identifying Creamy Layer among OBC’s.

Note: There is no concept of the creamy layer with respect to SC/ST reservation.

How can you know if you get OBC Reservation?

Central Government maintains a list of castes or communities which are given OBC status. Check the Central List of OBCs – based on your state. If your caste or community is mentioned there, you can apply under OBC quota – provided you meet the Non-Creamy Layer criteria as well.

If the candidate’s community is mentioned in the above list, then the next step is to check whether he/she belongs to the creamy layer or to the non-creamy layer. You should note that reservations are offered only to candidates belonging to the OBC non-creamy layer.

How can you know if you belong to Creamy Layer OBC or Non-Creamy Layer OBC?

The creamy layer is based on the status of your parents.

For the jobs under the Central Government, if the parents of an applicant entered the service as Class I officer before the age of 40 (direct recruitment), the applicant is considered as a creamy layer.

Also, if both the parents of the candidates entered into service as class II officers, before the age of 40 (direct recruitment), and entered into the service before the age of 40, the applicant is considered as a creamy layer.

Who comes under Non-Creamy Layer OBC?

Except for the above children of the above-mentioned employees, almost all get the benefit of “Non-Creamy Layer” Status.

  • If your parents are not directly recruited Class1 (Group A) or Class2 (GroupB) officers OR they do not occupy any constitutional posts (like that of President, Vice President, Governor etc) you are most likely to fall under Non-Creamy Layer OBC.
  • If your parents are not employed by the government, their income should be within the limits by the government to be treated as Non-Creamy Layer OBC.

Income Limit of determining the Non-Creamy Layer Status of OBCs

In order to qualify as an OBC non-creamy layer candidate, the applicant’s parents’ annual income should be less than Rs. 8 lakhs.

Salary and agricultural income are not to be considered as income for calculating annual income for creamy layer status. As far as the Government employees are considered, the entry cadre/post is to be taken into consideration.

While applying the “Income/Wealth Test” to determine the creamy layer status of any candidate, income from the salaries and income from the agricultural land shall not be taken into account. It means that if income from other sources other than the salary and agriculture exceeds the income limit, then only the candidates shall be treated as Creamy Layer.

Note: When the creamy layer concept was introduced, the income limit was set at Rs 1 lakh per annum (1993). Thereafter, it was raised to Rs 2.5 lakhs p.a (2004). It was subsequently increased to Rs 4.5 lakhs p.a. in 2008 and then to Rs 6 lakhs p.a in 2013. The current limit is Rs.8 lakhs per annum.

Read more about the OBC Reservation Eligibility.

EWS Reservation

The Central Government of India recently introduced EWS Reservation. 10% quota is provided for the Economically Weaker Sections (EWS) among General Category candidates in government jobs and educational institutions. This is done by adding clauses for the same in the Indian Constitution (103rd Constitution Amendment Act, 2019).

Economically weaker sections refer to the people or those households whose income is less than a certain threshold income. Tough there may be other factors that determine whether a certain household comes under a certain level of income.

On 7 January 2019, Union Council of Ministers approved a 10% reservation in government jobs and educational institutions for the Economically Weaker Section (EWS) in the General category. The cabinet decided that this would be over and above the existing 50% reservation for SC/ST/OBC categories.

Hence , this is how the EWS receive reservation under such categories.

History of Reservation System in India – Rectifying the Historical Injustice

To an extent, reservation as a policy is pursued by the State to correct the historical injustice done to certain castes by the so-called “upper castes”. The caste system prevailed in India had alienated many “lower castes” from the mainstream – hindering their development. To a great extent, the repercussions are still felt.

Original Constitution of India has provided reservation only for quota in legislatures – that too only for 10 years until 1960 (article 334). Subsequent amendments to the constitution extended the period of reservation for quota in legislatures.

Provisions of reservations in Educational Institutions and Government Jobs – article 15(4) and article 16 (4) – were too created by means of Constitutional Amendments later. No time period is given for the validity of the reservations mentioned in article 15(4) and article 16(4).

The initial reservations were only for SC and ST [article 15(4) and article 16(4)]. OBCs were included in the ambit of reservation in 1991 [article 15(5)]. In 2019, Economically Weaker Sections are also included [article 15(6) and article 16(6)]

Does India need reservation (now)?

It’s the duty of the government to provide equality of status and opportunity in India.

Reservation is one of the tools against social oppression and injustice against certain classes. Otherwise known as affirmative action, reservation helps in uplifting backward classes. However, reservation is just one of the methods for social upliftment. There are many other methods like providing scholarships, funds, coaching, and other welfare schemes. The way the reservation is implemented and executed in India is largely governed by vote-bank politics.

Indian Consitution allowed reservation only for socially and educationally backward classes. However, in India, it became caste-based reservation instead of class-based reservation.

Initially, the reservation was intended only for SC/ST communities – that too for a period of 10 years (1951-1961). However, it got extended ever since. After the implementation of Mandal Commission report in 1990, the scope of the reservation was widened to include Other Backward Communities (OBCs).

The benefits of the reservation were successively enjoyed only by a few communities (or families), excluding the truly deserving ones. Even 70 years after independence, the demand for reservation has only increased. Now, with the introduction of economic criteria for reservation, in addition to the caste-criteria which already existed, things have become more complicated.

Unequal should not be treated equally, but is reservation the only solution?

There is no doubt that unequal should not be treated equally. However, is the current system of unequal treatment perfect? Is it creating more injustice? Is it the only way out in a welfare-nation? It’s time to introspect.

Reservation based entirely on economic criteria is not an all-in-one solution, though family income can be one of the parameters. Also, it’s time to fix a time period for the reservation system – rather than extending it to eternity.

Denying India, the service of the meritorious candidates, who see them being overtaken by others with lesser academic performance or brilliance, is also a crime and injustice. Aren’t there any alternative mechanisms to uplift the marginalized so that everyone gets equal opportunities? How is affirmative action done in other countries? Reforms in the reservation system of India is the need of the hour. However, as the subject of reservation revolves around a lot of votes, parties are reluctant to disrupt the existing system.

50% Cap on Caste-Based Reservations

In Indra Sawhney vs Union of India, 1992, the Supreme Court of India capped caste-based reservation, ruling that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”.

“Since this Court has consistently held that the reservation under Articles 15(4) and 16(4) should not exceed 50% and the States and the Union have by and large accepted this as correct it should be held as constitutional prohibition and any reservation beyond 50% would liable to be struck down.”

While introducing the bill for Economic Reservation in 2019, Arun Jaitley (Finance Minister) contended that the 50% cap on reservations imposed by the Supreme Court was only for caste-based reservations, and the Economically Weaker Section (EWS) reservation won’t be impacted by it.

Poverty cannot be the basis to provide reservation: SC

As per Article 16(4), one of the main purposes of reservation is to provide adequate representation of all classes (castes) in government services. Economic Reservation introduced by Article 16(6) is actually against this concept – as it does not take into consideration the caste-based representation.

Moreover, the reservation is not a poverty alleviation scheme. Supreme Court had also ruled that economic status cannot be the sole criterion for reservation. Many states had tried to implement Economic Reservation, however, they were subsequently quashed by Courts.

Introducing EWS bill in 2019, Union Social Justice and Empowerment Minister Thaawarchand Gehlot said the similar state laws for EWS quota were quashed by Courts because there was no provision for economic reservation in the Constitution before.  Now, the Law will not be struck down by the Supreme Court if challenged as it has been brought by making required provisions in the Constitution.

Will Reservation System in India compromise the Merit (and efficiency of the system)?

Article 335 of the Indian Constitution states that

The claims of the member of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently, with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union
or of a State.

Provided that nothing in this article shall prevent in the making of any provision in
favor of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs
of the Union or of a State.

Author: Aaryan Mishra, KIIT Law School

Editor: Kanishka VaishSenior Editor, LexLife India

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