Rahul Kumawat – SHEO NARAIN LEGUM

An Anecdote of Reservation in India

By Rahul Kumar Kumawat

Article 14 of the Indian Constitution states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This article envisaged two important theories of equality named as equal protection of the law and equal protection of the law. The first concept that is equal protection of the law was borrowed from the British Constitution which means no one is above the law of the land in other words, privileged, underprivileged and unprivileged all are equal before law and it’s negative in connotation. Whereas, the second concept equal protection of the law was borrowed from the US Constitution which means law provides equal opportunities to all those who are in similar circumstances or in similar situations, in other words like should be treated alike. It’s is positive in connotation.

Article 15 (4) of the Indian Constitution states, “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”. This provision confers power on the hand of the state to make special provisions for “any socially and educationally backward classes” or for members of the SCs or STs for the reason to elevate the marginal section of the society socially and economically

Article 16 (4) of the Indian Constitution states, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”. When we read clause 4 of both articles 15 and 16 of the part III of the Indian Constitution they both look similar, however, the word “any backward class” in article 16 is broader term than the word “ any socially and educationally backward classes”. This provision also like clause 4 of the article 15 empowers the state to make any provision for backward class of citizens in order to uplift them socially and economically. These both provisions aren’t exception to the principle of equality enshrined in article 14 but the facet if equality under article 14.

The first landmark case that came before the Hon’ble Supreme Court of India related to reservation was State of Madras Vs. Champakam Dorairajan just after the constitution of India was enforced in 1950. In this case, one lady named Champakam Dorairajan filed a writ petition under article 226 before the Hon’ble Madras High Court which challenged Communal Government Order or in other words, state government’s reservation policy based on caste in four government medical colleges. The petition was filed which challenged reservation policy of Madras and it was contented that the policy was violating her article 15 (1) and 29 (2). Based on case merits, the Hon’ble Madras High Court struck down the Government Order on reservation. An appeal was filed by the state of Madras in the Hon’ble Supreme Court by the state, however, Supreme Court upheld the Madras High Court’s decision. T he GO was struck down by the Hon’ble Supreme Court as the classification was made by the state government solely on the basis of religion and caste for reservation in government medical colleges which is a violative of article 15. This landmark judgement of Hon’ble Supreme Court became the basis for the first constitutional amendment act, 1951 which amended article 15 and 16 of part III of the Indian Constitution. This first amendment to the constitution inserted a new clause that is clause 4 in the article 15, which empowers the state to make any special provision for The State Of Madras vs Srimathi Champakam 1951 AIR 226, 1951 SCR 525 ( Bench: Kania, Hiralal J. (Cj), Fazal Ali, Saiyid, Sastri, M. Patanjali, Mahajan, Mehr Chand, Mukherjea, B.K. & Das, S. R. Bose, Vivian) the advancement of any socially and educationally backward lasses of citizens or for the Schedule Castes and Schedule Tribes. Another landmark judgement of the apex court in the line was M R Balaji vs. State of Mysore in 1962. The state of Mysore in 1962, reserved the 68% seats in engineering and medicial colleges for socially and educationally backward classes and the SCs and STs by invoking its power under article 15(4) of the Indian Constitution. This policy of the state of Mysore was challenged before the constitutional bench of 5judges of the Hon’ble Supreme Court. The apex court in its judgement held that special provisions of Clause 4 of article 15 in part III of the Indian Constitution should have reasonable limit. Consequently, the court held that the reservation limit shouldn’t exceed the limit of 50%. Moreover, the court held that classification for reservation shouldn’t be solely based on the caste, there are other factors such as economic, social condition, etc. Which should be considered while making classification for reservation. In addition to this, it is interesting to note that the apex court in its judgement held that the provision in article 15(4) is an enabling provision which means that it doesn’t impose obligation on the appropriate government rather it is on the discretion of the appropriate government to take suitable steps for socially and educationally backward backward classes.

Subsequently, in T Devadasan vs. Union of india case, the constitutional bench of five judges of the Hon’ble Supreme Court again reaffirmed its judgement delivered in M R Balaji case on which the court held that the reservation in a particular year can’t exceed the limit of 50%. Moreover, the apex court held that the carry forward rule through which the members of SC and ST category getting reservation more than 50% in a particular year is unconstitutional as it violates Article 14, 16 and 335 of the Indian Constitution. In simple words, the carry forward rule means that unfilled seats for reserved category in a year could be carried forward to next year.

In 1967, again the constitutional bench of Hon’ble Supreme Court of India upheld its decision passed in MR Balaji case that Article 15(4) is an enabling provision and there is no constitutional obligation on the government to make provision of reservation for SCs and STs either at initial stage of recruitment or at the stage of promotion. Likewise article 16(4) is also an enabling provision which doesn’t confer rights to Indian citizens against the state.

The next case which came before the Hon’ble Supreme Court was K.C. Vasanth Kumar and others vs. State of Karnataka which was decided by the constitutional bench of five judges. In this case an important point was made by justice J. Chinnappa O. Reddy in his judgement that the role of economic poverty is a contributor to the class poverty, therefore, he realized that the economic ground is a bar to determine the backwardness.
However, in 1990 there was a major development related to reservation when then VP Singh government decided to implement the report of Mandal Commission. Looking back to the

M. R. Balaji And Others vs State Of Mysore 1963 AIR 649, 1962 SCR Supl. (1) 439 ( Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Gupta, K.C. Das, Shah, J.C.)

T.Devadasan vs The Union Of India And Another 1964 AIR 179, 1964 SCR (4) 680 ( Bench: Das, Sudhi Ranjan (Cj), Subbarao, K., Dayal, Raghubar, Ayyangar, N. Rajagopala, Mudholkar, J.R.)

M. R. Balaji And Others vs State Of Mysore 1963 AIR 649, 1962 SCR Supl. (1) 439 ( Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Gupta, K.C. Das, Shah, J.C.)

K.C. Vasanth Kumar & Another vs State Of Karnataka 1985 AIR 1495, 1985 SCR Supl. (1) 352 ( Bench: Chandrachud, Y.V. ((Cj), Desai, D.A., Reddy, O. Chinnappa (J), Sen, A.P. (J), Venkataramiah, E.S. (J))

background of this commission, in 1979 then Janta Party government decided to establish second backward class commission head by Bindeshwari Prasad Mandal( former Chief Minister of Bihar). The commission recommended 27% reservation for the 52% of the country’s population comprised of other backward classes(OBCs). The 27% reservation was recommended for OBCs in public sector, government jobs and in government colleges. However, this issue remained in deep freeze for nearly a decade. Later in 1990, VP Singh government decided to implement the recommendations made by the Mandal Commission which resulted into wide anti reservation agitation across the country. Meanwhile, the congress government also reserved 10 % seats for economically, socially and educationally backward classes. Thereafter this issue was raised before the Hon’ble Supreme Court’s nine judge constitutional bench that whether 27% reservation for OBCs is constitutionally valid or not? This celebrated case is popularly known as Indra Sawhney Vs. Union of India or Mandal Commission case.

Earlier this case came before the five judges bench, however, later it was referred to the larger bench of nine judges. The apex court in this upheld the constitutional validity of 27 % reservation for the socially and educationally backward classes, however, it struck down the additional 10 % reservation based on economic backwardness. Moreover, the court fixed the maximum limit of reservation upto the 50% of the total number of seats which can be exceed only in extraordinary circumstances. While the court upheld the 27% reservation for the socially and educationally backward classes or OBCs, it introduced the concept of “creamy layer”. In other words, if a person belongs to the creamy layer in OBCs, he/she can’t get the benefits of reservation. The creamy layer in OBCs can be determined on the basis of income of the parents or rank of parents. The concept of creamy layer was introduced with the aim that the most vulnerable people of the society get the benefit of reservation and they can be uplifted socially and economically. In addition to this, the court held that Article 16(4) doesn’t grant reservation at the stage of promotion but grants reservation only at the stage of appointment. And most importantly the court held that article 16(4) isn’t exception to the clause 1 of article 16 but an instance of classification which is envisaged in clause 1 of article 16.

Thereafter to nullify the effect of Indra Sawhney case, the parliament introduced the 77th constitutional amendment act 1995 which incorporated clause 4A in article 16. In two different cases namely Union Of India And Ors. Etc vs Virpal Singh Chauhan Etc and Ajit Singh Januja & Ors vs State Of Punjab & Ors the Hon’ble Supreme Court upheld the constitutional validity of the 77th amendment act. This provision empowers the state to provide reservation to SCs and STs in promotion if they aren’t adequately represented. However, the court introduced the concept of the Catch up rule, it means that if a senior candidate of general category is promoted after SC/ST candidates, he would regain his seniority in promotion over the juniors promoted ahead of him under the reserved vacancies.

Similarly, 81st constitutional amendment act, 2000 inserted clause 4B in article 16 of part III which revived the carry forward rule which means that unfilled vacancies which are reserved for a particular year, such vacancies can be filled up in any succeeding year. Likewise, 82nd constitutional amendment act inserted a proviso clause in the article 335 of the Indian Constitution which empowers state to make any provision for the members SCs and STs for

Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. AIR 1993 SC 477, 1992 Supp 2 SCR 454

Union Of India And Ors. Etc vs Virpal Singh Chauhan Etc 1996 AIR 448, 1995 SCC (6) 684

Ajit Singh Januja & Ors vs State Of Punjab & Ors 1996 AIR 1189, JT 1996 (2) 727

(Bench: Y.K.Sabharwal Cji, K.G.Balakrishnan, S.H.Kapadia, C.K.Thakker, P.K. Balasubramanyan)

relaxation in qualifying marks or lowering the standard of evaluation in any examination for the purpose of reservation in matters of promotion to any class or classes of services or posts. And through the 85^th constitutional amendment act, clause 4A of article 16 was amended which confers power to the state to provide quota in promotions with consequential seniority. And these all amendments were made in order to restore the government’s power in relation to promotion as prior to Indira Sawhney case.

These all amendments that is 77^th , 81^st , 82^nd and 85^th constitutional amendment act were again challenged in M Nagaraj vs. Union of India[1] before the Hon’ble Supreme Court of India. The matter came before the constitutional bench of five judges which upheld the constitutional validity of all these amendments in its judgement which provide reservation in promotion to members of SCs and STs. Moreover, the court held that the reservation in the promotion is constitutionally valid provided that the state has to meet three condition: firstly, the state should demonstrate the backwardness the SCs or STs; secondly, to prove that the SCs or STs is inadequately represented in relevant public employment, and lastly, to maintain the overall efficiency of administration.

The policy of the reservation was envisaged in the Indian Constitution with the objective to elevate the members of marginal section of the society such as SCs, STs, and OBCs, socially, educationally and economically. These section of the society were oppressed for over the period of centuries, the founding fathers of our Indian Constitution envisaged the idea of reservation with the vision of securing a dignified existence to the individual and to bring these people of the marginal section of the society in the mainstream by uplifting them socially and economically and with the aim to provide social and economical justice which are enshrined in the preamble of our constitution.

[1] M.Nagaraj & Others vs Union Of India & Others (2006) 8 SCC 212. (Bench: Y.K.Sabharwal Cji, K.G.Balakrishnan, S.H.Kapadia, C.K.Thakker, P.K. Balasubramanyan)