A Project on

THE VEIL OF AFFIRMATIVE ACTION IN

INDIA: COMPENSATORY DISCRIMINATION
AND THE CONSTITUTIONAL STAND
(Compensatory Discrimination: CG Hons. - I)

Project Submitted to
Dr. Deepak Srivastav
[Faculty, Compensatory Discrimination (CG - Hons. I)]

Project Submitted by
Gargi Whorra
(Roll No.- 45)
Semester VII

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

TABLE OF CONTENTS

1. ACKNOWLEDGEMENT............................................................................................................3
2. LIST OF ABBREVIATIONS.......................................................................................................4
3. RESEARCH METHODOLOGY.................................................................................................5
4. INTRODUCTION......................................................................................................................6
5. CHAPTER I. EXAMINING EQUALITY AND COMPENSATORY DISCRIMINATION

AT

THE INDIAN

BACKDROP.................................................................................................................................7
6. CHAPTER II. REVISITING THE SPECIAL PROVISIONS: SCS, STS, SOCIALLY AND
EDUCATIONALLY BACKWARD CLASSES AND WOMAN..........................................................11
7. CHAPTER III. SEEKING SUBSTANTIVE AFFIRMATIVE ACTION: RESERVATION IN EMPLOYMENT
OPPORTUNITIES.......................................................................................................................21
8. CHAPTER IV. REPRESENTING RESERVATION

IN

DEMOCRACY: RESERVATION IN LOK SABHA

AND LEGISLATIVE ASSEMBLIES.............................................................................................33

9. CHAPTER V. THE FALLACY OF RESERVATION: A BRIEF ANALYSIS.................................33
10. CONCLUSION......................................................................................................................35
11. REFERENCES......................................................................................................................37

ACKNOWLEDGEMENT

The author would like to express his deep sense of gratitude towards his subject teacher Dr. Deepak
Srivastav for having given this topic for the project and also for his kind guidance and support. The
researcher also thanks his friends, seniors and the library staff for their co-operation and support.

LIST OF ABBREVIATIONS

AC........................................................................................................................Appeals Cases
AIR.................................................................................................................All India Reporter
Art....................................................................................................................................Article
Doc..............................................................................................................................Document
Ibid...................................................................................................................................Ibidem
OBC..........................................................................................................Other Backward Class
SCC............................................................................................................Supreme Court Cases
SC......................................................................................................................Scheduled Caste
SC........................................................................................................................Supreme Court
SEBC......................................................................Socially and Educationally Backward Class
ST.......................................................................................................................Scheduled Tribe

This project is descriptive and analytical in nature. Doctrinal approach has been followed. It is
largely based on primary, secondary and electronic sources. Books and other references as guided by
faculty of Compensatory Discrimination are primarily helpful for the completion of this project.

INTRODUCTION
Discrimination against groups of citizens on grounds of race, religion, language, or national origin
has long been a problem with which societies have grappled. However equality is the order of nature.
5

Life in nature does not discriminate the two of a same kind. Discrimination is the human concept
which stems from base feelings or superiority, prejudice and unhealthy greed. Man acts as the source,
the means, the vehicle and the propagator of discrimination but the irony lies that this very man
targets all of this against his own kind. But it cannot be denied that even nature does not follow
equality in mathematical sense. Therefore equality being a natural and human right requires a special
favour from the highest institution of human being i.e. the State. Yet the State cannot treat the two
unequals equally as it would be against the basis of equality i.e. treatment of unequals equally
results in inequality.
India has suffered from centuries from viral discrimination based on caste, creed, sex and religion
and thus has had a long chequered history. Perhaps the issue of discrimination in India country is
more important and even worse than all the other countries of the world. The issue of caste and class
has been haunting the Indian society for years now and is still struggling to break free from the
clutches of this deadly evil. India got freedom from the shackles of an alien rule but could not free
itself from the orthodoxies that had been governing is for years. There were clamors from the
nationalist leaders about the utopian dreams of a classless egalitarian order, but that day has not seen
light yet and hence equality is the single greatest craving of the era of humankind.1
It is on the basis of such intrinsic nature of the brutal sword of discrimination that the Constitution
makers and the Legislature provides for the shield of reservation by giving proportionate
opportunities to the people of Scheduled Castes, Schedule Tribes and other backward classes. The
reservation is intended to aggrandize the social diversity in campuses and workplaces.
The jurisprudential basis of such affirmative action is vividly described by Justice PB Sawant as
The right to equality without the capacity and the means to avail of the benefits equally is a cruel
joke practiced on the deprived sections of the society. It widens the social and economic inequalities
progressively with the haves making use of the guaranteed right to amass the fruits of progress, and
the have-nots remaining where they are. The exceptions (to the right to equality law) enable the State
to make the deprived capable of availing of the benefits which otherwise they would not be able to
do. It is to give effect to the principle of equality that the exceptions become mandatory in any
unequal society such as ours which intends to become egalitarian. To treat two unequals equally

1 As remarked by Pandian J. in Indra Sawhney v. Union of India 1992 (3) Supp 216.
6

causes as much injustice as to treat two equals unequally. The jurisprudence of equality therefore
requires that those below are leveled up to those above.2
Reservation in our Country is known as Quota system. Article 15 of Indian Constitution lays down
that a citizen shall not be discriminated against, on grounds of religion, race, caste or place birth. Lot
of verdicts of our Indian Judiciary as to reservations have been modified subsequently by our
parliament through Constitutional Amendments Acts. However, some rulings of our Courts have
been scoffed by State and Central Governments. Some Judgments upheld the reservations and some
rulings for fine turning its implementation regarding reservations.

CHAPTER I.
EXAMING EQUALITY AND COMPENSATORY
DISCRIMINATION AT THE INDIAN BACKDROP

Backdrop of the Sociological underpinnings of discrimination

Hindu society is divided into four varna, or classes, a convention which had its origins in the Rig
Veda, the first and most important set of hymns in Hindu scripture which dates back to 1500-1000
B.C.3 At the top of the hierarchy are the Brahmins, or priests, followed by the Kshatriyas, or
warriors. The Vaisyas, the farmers and artisans, constitute the third class. At the bottom are the
Shudras, the class responsible for serving the three higher groups. Finally, the Untouchables fall
completely outside of this system. It is for this reason that the untouchables have also been termed
avarna or the one with no class. Jati, or caste, is a second factor specifying rank in the Hindu
social hierarchy. Jatis are roughly determined by occupation. Often region-specific, they are more
precise than the sweeping varna system which is common across India and can be divided further
into subcastes and sub-subcastes. This is also the case among untouchables. Andre Beteille defines
caste as a small and named group of persons characterized by endogamy, hereditary membership,
and a specific style of life which sometimes includes the pursuit by tradition of a particular
occupation and is usually associated with a more or less distinct ritual status in a hierarchical
2 P.B. Sawant, The Constitution, Equality and Reservations, (June 14, 2003) Mainstream.
3 C.J. Fuller, The Camphor Flame: Popular Hinduism and Society in India (Princeton: Princeton University Press, 1992),
12.

system.4 As a result, until reforms began in the 19th century, untouchables were barred from
entering temples, drawing water from upper-caste wells, and all social interaction with upper-caste
Hindus (including dining in the same room). These social rules were strictly imposed and violators
were severely punished; some were even killed.
Throughout the world, a welfare state has been eulogized, resulting in a corresponding expansion of
its powers and functions, and thus, a greater encroachment into the domain of individual rights. The
Constitution of India contemplates a sovereign, socialist, secular, democratic republic, committed to
securing justice, liberty, equality and fraternity to its citizens. The constitution makers established a
regime of formal equality in a hierarchical society, wherein the State was required to take various
measures to alleviate prevailing inequalities in wealth, education and power.5
At the same time, the government was required to safeguard the interests of the minorities,
backward and tribal areas, and depressed and other backward classes. 6 The three goals that these
principles represent national unity, democracy and social revolution form three strands of a
seamless web that runs through the Indian Constitution.7
The goal of social revolution is evident in Part IV of the Constitution which obligates the
government to take Affirmative Action (Affirmation Action) to achieve an egalitarian social order,
with universal access to employment, health and educational services. Affirmation Action was
considered necessary in post-independence India to promote the integration and participation of the
historically excluded classes. This deviation from the traditional liberal democratic framework is
expected as the Constitution framers endeavored to abolish the traditional caste and class divisions in
order to satisfy the fundamental needs of every citizen, irrespective of race, religion or community.8

4 Andre Beteille, Caste, Class and Power: Changing Patterns of Stratification in a Tanjore Village (Delhi:
Oxford University Press, 1996), 46.
5
6 Paul Lansing and Sarosh Kuruvilla, Job Reservations: A Functional Analysis, 13 (1986), Indian Bar
Review 178.
7 Parmanand Singh, Reservation Crisis in India: Reflections on Mandal Report, 17(3&4) (1991), Indian Bar Review
205.

8Clark D. Cunningham, Affirmative Action: India s Example , 4 C.R.J. 22 1999.

8

Assessing Equality and Compensatory Discrimination

The Universal Declaration of Human Rights encompasses both civil or political rights and economic
or social rights. Affirmative action stands at the intersection of these two complementary categories.
Affirmative action aims to redress historic and lingering deprivations of the basic civil right to
equality, the legacy of slavery in the United States, for example, or of the caste system long
entrenched in India.9 India boldly announced a commitment to affirmative action in its 1950
Constitution, by eradicating such inequality and to usher the spirit of social, economic and political
justice and equal opportunity for all. 10 The idea of equality is one of the foundational values of our
Republic11. This was one of the core values shared by the various visions of India articulated by the
different strands of our freedom movement. These strands drew upon different egalitarian traditions
within India and the west, placed different emphases on the various spheres of equality, advocated
different strategies for achieving equality and indeed differed in how much weight they accorded to
the idea of equality in their vision of future India 12. Yet it was quite evident to the builders of modern
India that the freedom movement drew a good deal of its energy not just from an urge to achieve
political freedom but also from the aspiration for equality13. It was natural therefore that the idea of
equality was enshrined as first among the Fundamental Rights in the Constitution of India 14. The
Preamble to the Constitution includes Equality of Status and of Opportunity to all Citizens as one
of the guiding values for the new Republic. 15 The idea of equality is not merely a principle
propounded by legal experts and respected by courts of law; it has a much wider resonance in the
9 Ruth Bader Ginsburg & Deborah Jones Merritt, AFFIRMATIVE ACTION: AN INTERNATIONAL HUMAN
RIGHTS DIALOGUE, 21 Cardozo L. Rev. 253 1999-2000.

10 Preamble.
11 State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
12 Nitish Sengupta, OBC quotas: Creamy layer and all that, Courtesy: The Asian Age; May 4, 2008, available
at http://www.socialcause.org/getarticlefromdb.php?id=1966 (last visited on August 27, 2013).
13 COUPLAND , R., THE CONSTITUTIONAL PROBLEMS IN INDIA 67 (1945); AUSTIN, GRANVILLE, WORKING A
DEMOCRATIC CONSTITUTION: THE INDIAN EXPERIENCE (Delhi: OUP, 1999).
14 COUPLAND , R., THE CONSTITUTIONAL PROBLEMS IN INDIA 68 (1945).
15Report by the Expert Group to Examine and Determine the Structure and Functions of an Equal
Opportunity Commission Set up by the Ministry of Minority Affairs, Government of India, February, 2008.
9

countrys public life.16 The egalitarian strands in the freedom movement acquired a much wider
presence in post-independence India and have come to shape the language of State policy, political
discourse and public opinion. Every one of the eleven Five Year Plan documents talks of elimination
of poverty, reduction of inequalities and securing just conditions of life for the most deprived groups
in society. The National Policy on Education identified that its main task was to strengthen the base
of the pyramid. Expressions such as these are routinely used in the Presidential Address to the
Parliament and to the Nation.17
The purpose of affirmative action is to speed up the establishment of a representative and
unprejudiced workforce in addition to assist those who were in the past deprived by unfair
discrimination to fulfill their highest potential. 18The drafters of the Indian Constitution were aware of
the prevailing horrifying conditions of the backward groups who had remained segregated from the
national and social mainstream, and, who had continued to be socially oppressed and economically
exploited for centuries for various types of disabilities 19. The efforts to secure equality to the people,
by means of preferential treatment, were incorporated in the Constitution itself. A mere declaration of
the class discrimination as unlawful after so many years of its practice could not secure equality, and
therefore something more was required to overcome these problems 20. Compensatory preference
involves a delicate combination of self-liquidating and self-perpetuating features. Reservations of
upper echelon positions should become redundant as preferential treatment at earlier stages enables
more beneficiaries to compete successfully, thus decreasing the net effect of the reservations.
Compensatory discrimination may be advocated not as a device to assure fairness to individuals, but
as a means to produce desired social outcomes, e.g. to reduce group disparities, afford representation,
encourage the development of talent and so forth.21
16 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA , vol 1, 223 (14th ed. 2008).
17 Ibid.
18 White Paper GN 564 in GG 18800 of 23 April 1998.
19 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA , vol 1, 223 (14th ed. 2008).
20 Hariharan Pillai v. State of Kerala, AIR 1968 Ker. 42, 47-8.
21 T. Deane, A COMMENTARY ON THE POSITIVE DISCRIMINATION POLICY OF INDIA12
Potchefstroom Elec. L.J. 27 2009.
10

India, has thus embraced substantive equality as the principal value against the background of
discriminatory practices.22 It was realised that mere provision for formal equality would not suffice to
bring about the desired equality of status and of opportunity 23. Thus, something else was needed to
be done. Articles 15(4) and 16(4) were thus inserted in the Constitution in the respective Articles
which provide for non-discrimination24. A Full Bench of the Kerala High Court, in this regard,
observed thus, "It has...been realised that in a country like India, where large section of the people
are backward socially, economically, educationally and politically, these declarations and guarantees
[of equality] would be meaningless unless provision is also made for the upliftment of such
backward classes who are in no position to compete with the more advanced classes. Thus to give
meaning and content to the equality guaranteed by the Articles 14, 15, 16 and 29, provision has been
made in Articles 15(4) and 16(4) enabling preferential treatment in favour of the weaker sections." 25
The Supreme Court of India has observed that the guarantees of Equality might by themselves
aggravate existing inequalities if taken literally"Instead of giving equality of opportunity to all citizens, it will lead to glaring inequalities.
The predominant concept underlying [Article 16] is equality of opportunity in the matter of
employment; and, without detriment to the said concept, the State is enabled to make
reservations in favour of backward classes to give a practical content to the concept of
equality."26
Constitutional Backdrop of Affirmative Action
In a democratic setup like India, the idea of reservations is to provide the basic needs to the
underprivileged that will create an opportunity for every individual the equal right to access
resources irrespective of caste, creed, gender, class and economic disparities. The Indian Constitution
provides for Positive Discrimination. Under the Indian Constitution, what Article 14 forbids is
22 Nicholas Smith, AFFIRMATIVE ACTION: ITS ORIGIN AND POINT 8 S. Afr. J. on Hum. Rts. 234 1992.
23 PROF. MP JAIN, INDIAN CONSTITUTION LAW 916 (5th ed. 1006).
24 PROF. MP JAIN, INDIAN CONSTITUTION LAW 916 (5th ed. 1006).
25 Hariharan Pillai v. State of Kerala, AIR 1968 Ker. 42 at 47-8.
26 Triloki Nath Tiku v. State of Jammu and Kashmir, AIR 1987 SC 1283 at 1285.
11

discrimination between persons who are situate in similar circumstances. The rule is that like
should be treated alike and not that unlike should be treated alike.27 In the landmark judgment of
Ram Krishna Dalmia v. Justice S.R. Tendolkar,28

Das, CJ pointed out that Article 14 forbids class

legislation but does not forbid classification or differentiation on reasonable grounds of distinction
for the purpose of legislation.29 In order for a valid legislation two considerations are to be borne in
mind. Firstly, the classification is based on an intelligible differentia, which distinguishes persons or
things grouped together from those left out of the group. Secondly, the differentiation must have a
rational nexus with the object sought to be achieved by the Act. Similar test is adopted by the Courts
in South Africa to determine the reasonableness of an Act.30

CHAPTER II.
REVISITING THE SPECIAL PROVISIONS: SCS, STS,
SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES AND
WOMAN

Indian Constitution prohibits any discrimination based on religion, race, caste, sex, and place of birth
as provided by Article 15(1). This law extends to all public institutions, such as government-run
educational facilities, to access to hotels and restaurants, public employment and public wells, tanks
(manmade ponds for water supply and bathing), and roads. Significantly, Article 15, which prohibits
discrimination, also contains a clause allowing the union and state governments to make any special
provision for the advancement of any socially and educationally backward classes of citizens or for
the Scheduled Castes and Scheduled Tribes. This language was added in 1951 within weeks of a
Supreme Court decision outlawing quotas in school admissions 31. Similarly, Article 16, calling for
equality of opportunity in matters of public employment, contains clauses permitting the
27 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 52.
28 Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538.
29 Budhan Choudhary v. State of Bihar, AIR 1951 SC 191.
30 Harksen v. Lane No and Others, (1997) 11 BCLR 1489 (CC).
31 Champakam Dorairajam v. State of Madras AIR 1950 SC 220
12

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. It also permits
reservation in matters of promotion32 for Scheduled Castes and Scheduled Tribes33.
Article 15(4) contains an exception to the non-discriminatory clauses (1) and (2) of Article 15. It
enables the State to make any special provisions for the educational, economic or social
advancement of any socially and educationally backward classes of citizens or for the SCs and the
STs. Article 15(4) was added by the Constitutional (First Amendment Act) of 1951 as a result of the
decision of the Supreme Court of India in State of Madras v. Champakam Dorairajan34 wherein it
struck down the communal Government Order, whose object was to help the backward classes and
therefore the Madras Government had fixed the proportion of the students of each community that
could be admitted to the State Medical Colleges. Art. 15 (4) says that the state is not prevented from
making any special provisions for the advancement of socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled Tribes.
Scheduled Castes And Scheduled Tribes and Socially And Educationally
Backward Classes
The Constitution doesnt specify the castes or tribes which are to be called as the Scheduled Castes
(SCs) and Scheduled Tribes (STs). It leaves this power to list these castes or tribes to the president
i.e. the central executive so that the ends are met while considering the contemporary needs of the
society.
Scheduled castes, according to Article 366 (24) r/w Art. 341 are those castes, races or tribes, or parts
thereof, as the President may notify. The list of Scheduled castes may vary form State to State and
from Union Territory to Union Territory. Similarly, STs according to Art. 366 (25) r/w Article 342 are
those tribes or tribal communities, or parts or groups thereof, as the president may notify. As regards
the identification of SCs and STs, there has never been a major problem.

32 By the judgment of the SC in Indra Sawhney v. Union of India 1992 (3) Supp SCC 216
33 The Constitution defines the State as the Government and Parliament of India and the Government and
the Legislature of each of the States.
34 State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
13

However the major issue boils down to the difficulty raised by Art. 15 (4) regarding the
determination of who are socially and educationally backward classes. This is not a simple matter
as sociological and economic considerations come in play in evolving proper criteria for this
determination. The question of defining backward classes has been considered by the Supreme Court
in a number of cases. On the whole the Supreme Courts Approach has been that state resources are
limited; protection of one group affects the constitutional rights of other citizens to demand equal
opportunity, and efficiency and public interest have to be maintained in public services because less
meritorious being is preferred to the more meritorious one.
Seeking out the Supreme Court
The first case that came before the Supreme Court after the enactment of Article 15(4) was M.R.
Balaji v. State of Mysore35. The facts entailed an order of the Mysore Government issued under Art.
15 (4) reserved seats for the admission to the State Medical and Engineering Colleges for backward
classes and more backward classes. This was in addition to the reservation of the seats for the SCs
and STs. Backwards and More Backward classes were designated on the basis of castes and
communities. The Supreme Court characterized Article 15(4) as an exception to Article 15 (1) and
Article 29 (2). The Court declared the order bad and observed that firstly, defect in the order was that
it was based solely on Caste without regard to other relevant factors and this was not permissible
under Art. 15(4). Though Caste in relation to Hindus could be a relevant factor in determining the
social backwardness, it cannot be made sole and dominant test on that behalf. Secondly, the court
declared that Article 15(4) doesnt envisage classification between the backward and more backward
classes. Thus in Balaji, the Court could sense the danger in treating caste as the sole criterion for
determining the social and educational backwardness. The court in the above decision also said that
the reservation ought to be less than 50 %. The court further added that a provision under Art. 15 (4)
need not be in the form of the law made by the legislature; it could as well be made by an executive
order.
After this decision in Chitralekha v. State of Mysore36, an order saying that a family whose income
was less than Rs. 1200 per year, and which followed such occupations as agriculture, petty business,
inferior services, crafts etc. would be treated as backward, was declared to be Valid. Here two
35 AIR 1963 SC 649.
36 AIR 1964 SC 1823.
14

factors economic condition and profession were taken into account to determine the backwardness,
but caste was ignored for the purpose. The Court said that the term class cannot be equated to
caste and if in a given situation caste is excluded in ascertaining a class within the meaning of the
Article 15 (4) of the Constitution, it doesnt vitiate the classification if t satisfied other tests 37. There
is nothing in Article 15 (4) of the constitution which would preclude the authority concerned from
determining the of a group of citizens without any reference to caste.
In the course of time, judicial view underwent considerable change and more importance was given
to caste as a factor to assess backwardness. In P. Ranjendran v. State of Madras38 it was held that
though caste cannot be the sole criteria, it should not be forgotten that caste is also a class of
citizens and if the caste as a whole is socially and educationally backward, reservation can be made
in favour of such caste. In S.V. Balaram v. State of Andhra Pradesh39, a list of backward class based
solely on caste with material proving that those castes were socially and educationally backward,
was held to be valid. But in State of Andhra Pradesh v. P.Sagar40, a list of backward class based
solely on caste without any material showing that the entire caste is backward, was quashed as
violative of Article 15(4). In K.S. Jayasree v. State of Kerela41, a person belonging to the backward
class but family income exceeding Rs. 10000, was denied the benefit of reservation as it was held
that caste could not be treated as the sole or dominant test for the purpose and poverty too had too be
taken into account. It was held that neither poverty nor caste can be sole factors for determining
backwardness. Caste and poverty are both relevant factors for determination of backwardness.
In Jagdish Negi v. State of Uttar Pradesh42, it was made clear that no class of citizens can be
perpetually treated as socially and educationally backward and the State is entitled to review the

37 Ibid. Subba Rao, J.

38 P. Rajendran v. State of Madras, AIR 1968 SC 1012.
39 SV Balaram v. State of Andhra Pradesh, AIR 1972 SC 1375.
40 State of Andhra Pradesh v. P. Sagar, AIR 1968 SC 1369.
41 AIR 1976 SC 2381.
42 AIR 1997 SC 3505.
15

situation from time to time. In Indra Sawhney v. Union of India43, the Court observed that the policy
of reservation has to be operated year wise and there cannot be any such policy in perpetuity. Further
it also held that Art. 15(4) does not mean percentage of reservation should be in proportion to the
percentage of population of the backward classes to the total population and that it was the States
discretion to keep reservation at reasonable level by taking into consideration at all legitimate claims
and relevant factors.
Finally one may analyze Ashok Kumar Thakur v.Union of India44, where Justice Balakrishnan, CJ,
did not lay down any new principle for determination of backward classes, but followed the principle
as was laid down in earlier judgments. The question dealt was whether the list formulated by the
National Commission for the Backward Classes and the State Commission of Backward Classes has
considered all relevant factors and criteria apart from caste for determination of backwardness.
Various commissions had held public hearings at various places for determination of backward
classes. National Commission held 236 public hearing before it finalized the list. National
Commission recommended 297 requests for inclusion and at the same time rejected 288 requests for
the inclusion in the final list. The Commission had taken into consideration detailed data with regard
to social, educational and economic criteria. It had also looked into whether there had been any
improvement or deterioration in the condition of the caste or community (mentioned in the final list)
during the past 20 years. Thus Justice Balakrishnan, in his judgment held that identification of
OBCs was not done solely based on caste. Other parameters were followed in identifying the
backward class.
Thus it is true to construe caste as a major criterion for determination of backwardness since caste
system has been prevalent in India since time immemorial. Every individual belongs to some caste or
the other. The backwardness of people in India can be traced to the caste they belonged to. Every
caste is associated with a particular occupation. That relation could not be severed. The unfortunate
but undeniable fact remains that the caste-occupation nexus exists till date in India. An example cited
was in the case by learned Counsel Ravivarma Kumar, appearing for the Union of India, that
throughout the country in 6.5 lakh villages, it is the barber communities and the barber communities
alone, which carry on the traditional occupation of hair cuttings and no other community has taken
43 AIR 1993 SC 477.
44 (2008) 6 SCC 1.
16

up the said occupation. Though it may be said that people have deviated from that occupation and
became doctors, engineers, lawyers, etc, but these people form a very small number. Thus the whole
caste on the basis of the occupation they follow could be called backward. Thus caste as a criterion
cannot totally be ignored.
Reservation in Private Educational Institutions
To instil affirmative action in its true spirit the legislature has expanded not only the scope but also
the ambit of the reservation policy. Education naturally plays a vital role in the emancipation of the
depressed classes of society. Thus in the field of education the policy of reservation in government
education institutions and government aided institutions were in prevalence prior to Independence
which even continued after insertion of cl (4) in Article 15. However the conflict arose when the
government sought to impose reservation in private educational institution and private unaided
educational institution the matter went to Supreme Court.
The Supreme Court in TMA Pai Foundation45, held that a private unaided educational institution has
a fundamental right under Article 19(1)(g) with respect to the establishment and administration of
educational institutions. Disagreements relating to the ratio of the case led to the constitution of a
five-judge bench in Islamic Academy of Education entrusted with the task of clarifying the judgment
in TMA Pai Foundation. Subsequently, a seven-judge bench was constituted in P.A Inamdar46 to
assess the clarification in Islamic Academy of Education47 and confirm the Ratio in TMA Pai
Foundation. P.A. Inamdar made it abundantly clear that the law as per TMA Pai Foundation was
that neither can the policy of reservation be enforced by the State nor can any quota or percentage
of admissions be carved out to be appropriated by the state in a minority or non-minority unaided
educational institution.48 These decisions created a deadlock and infused frustration among the
reserved category candidates and legislatures. In order to lessen the frustration among the reserved
category candidates the Parliament introduced an amendment, the Constitution (93 rd Amendment)
Act, 2005 in Art. 15 and inserted an additional clause (5) in the same article which runs as follows:
45 A.I.R. 1958 S.C. 1956.
46 P.A.Inamdar v. State of Maharashtra, AIR 2005 S.C. 3226.
47 Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697.
48 P.A.Inamdar v. State of Maharashtra, AIR 2005 S.C. 3226.
17

Noting in this Article or in sub clause (g) of clause (1)of Art. 19 shall prevent from making any
special provision by law, for the advancement of any socially and educationally backward classes of
citizens or for the SCs or STs in so far as such special provisions related to their admission to
educational institutions including aided or unaided by the state other than the minority educational
institutions referred to in clause (1) of Art. 30.
In order to bring into reality the provision of Article 15(5) the Parliament enacted Central
Educational Institutions Act, 2005. Only one of the aspects of Article 15(5) is covered by the
legislature in the Central Educational Institutions Act, while Article 15 (5) does apply to private
unaided institutions. The Supreme Court confronted with the validity of the amendment as well as
the Act of 2005 in Ashok Kumar Thakur v Union of India. Four out of five judges found that a
decision on this issue was unnecessary and would be properly made when appropriate parties were
before it.49
Emancipation of Woman
The Constitution of India not only grants equality to women but also empowers the State to adopt
measures of positive discrimination in favour of women for neutralizing the cumulative socio
economic, education and political disadvantages faced by them. Traditionally, India had seen a
woman as a member of the family or a group and not as an individual with an identity or right of her
own. The principle of equality of women and men has been basic to traditional Indian thinking and
the Hindu religious philosophy. Historically Indian women are equal to men. The concept of woman
as Shakti, the primal energy force, finds expression in the famous epic Mahabaratha. In earlier Vedic,
age a woman held higher and honored situation in gender relationship. She enjoyed freedom of
movement and had the same rights and access to reading Vedas, getting education and having a say
in the choice of her marriage partner. Thus, during the Vedic periods women actively played in the
intellectual and social life of the country. These epics through ages have become benchmark with
which status of women is compared. While making comparison it is always said that as women
participate equally along with men in the religious rituals so woman are equal to men.
However the honored status that women enjoyed in the family and society began to undergo radical
changes, particularly since the pronouncement by Manu the Hindu law-giver, regarding a womans
changing position through her life cycl. In childhood subject to her father, in youth to her husband
and when her husband is dead to her sons, she should never enjoy independence. This subordinate
49 Ibid.
18

position of a woman suited to the man also. In this way, the images of woman created by the Hindu
lore thus became paradoxical and contradictory to the earlier vedic Mahabharata and Ramayana
days. She became as an essentially weak and dependent creature needing the constant guardianship
and protection of man. Marriage, Motherhood and service to the husband were the most valuable
attributes of the woman. Later Vedic age denied to her reading Vedas and getting education.
With the coming of Muslim rule, medieval India witnessed enhanced dependency of women on men.
The Islamic custom of Purdah (veiling of women) forced the public world to be separated from the
private world, with women confined to the latter.50 Following its subjugation by the Muslims, and
fearing adverse outcomes for its women, a large part of the Hindu India accepted the practice of
veiling. Through this privatization, Indian women were forced to trade their mobility for safety.
Repeated invasions by the Muslims further pushed the Indian women towards inhuman traditions
such as child marriage, the dowry system, purdah and sati (the immolation of the widow on the dead
husbands pyre).51 With the coming in of the British occupation of India, the British crown assumed
charge of administering the colony from the British East India Company in 1858. Although, the
common women faced male domination and atrocities during the medieval and English period but at
the higher level a women could become a ruler or regent of her children at the death of her ruler
husband, she had the right to get training in war tactics. Reformist organizations such as Brahmo
Samaj, the Arya Samaj and Ramakrishna Mission and individual male reformers like Eshwarchandra
Vidyasagar, Ramakrishna Paramahans, Keshab Chandra Sen, Maharishi Kare, Mahadev Ranade and
Gopal Krishna Gokhale led the fight against womens oppression by condemning such practices as
polygamy, early marriage, enforced widowhood and by advocating female literacy. The Britishers
along with Indian reformers raised their voice to eliminate brutal practices against woman, which
had placed them at the marginalized position in the society such as: female infanticide, child
marriage, enforced widowhood and sati. Thus, in order to raise the status of Indian women, the
British rule led to number of socio religious reforms in the country.
The Indian Woman in Freedom Struggle In 1887, the National Social Conference was formed
specifically to lead the social reform campaign to further support one of its major objectives of
womens emancipation. It created a separate entity known as the Indian Womens Conference.
Gandhiji openly held that sacred texts and customs, which rationalize injustices to women or
50 Desai, Neera, Woman in Modern India, (1957) p.23.
51 Khanna Verghese, Indian Women Today, (1978), p.3.
19

advocated female subservience, deserved neither respect nor compliance. He supported womens
induction into public life while asking also that their domestic role be fully honored and valued. His
tools of mass agitation politics served him well in getting women out of the private into the public
sphere. Thus during the freedom struggle no distinction was made in the participation of either
women or men. This gave equal status to gender. In recognizing their contribution the principle of
Thus with the ushering of a free India the same spirit of reforming the status of woman continued
and Gender Equity and Equality was enshrined in the constitution of free India in 1950. The
Preamble of the Indian Constitution briefly crystallizes and solemnly declares among other things;
Justice, social, economic and political and equality of status and of opportunity which by
implication sought to equalize women. Article 14 ensures equality before law and Article 15
prohibits any discrimination. There is only one specific provision in Article 15(3), which empowers
the state to make any special provision for women and children, even in violation of the
fundamental obligation of nondiscrimination among citizens, inter alia of sex. Article 16(1)guarantees equality of opportunity for all citizens in matters relating to employment or appointment
to any office under the state. In addition, Article 16(2) forbids discrimination in respect of any
employment of office under the state on the grounds only of religion, race, caste, sex, descent, place
of birth, residence or any one of them. Directive Principles, which concern women directly, have a
special bearing on their status. These include:
Article 39(a) right to an adequate means of livelihood for men and women equally
Article 39(d) equal pay for equal work for both men and women
Article 39(e) protection of the health and strength of workers men, women and children from
abuse and entry into a vocations unsuited to their age and strength
Article 42`just and humane conditions of work and maternity relief
The Constitution of India lays that an Indian Woman will function as a citizen and as an individual
partner in the task of nation building whatever her social position role or activities may be. While
motherhood is an important function, the constitution implies that this is not the only role for
women of India. There are so many other roles for the Indian Women as a partner in the nation
building.

20

The Courts in India have played a pivotal role in redefining the status of woman by illustrative
decisions which have had far reaching effects. These decisions work towards attaining not only de
jure equality but also facilitating de facto equality. The Delhi High Court has expounded upon its
attitude in Dimple Singla v. Union of India52 expressed apprehension that unless attitudes change,
elimination of discrimination against women cannot be achieved. There is still a considerable gap
between constitutional rights and their application in the day to day lives of most woman.
In C. B. Muthumma v. Union of India,53 a writ petition was filed by Ms. Muthumma, a senior
member of the Indian Foreign Service, complaining that she that she had been denied promotion to
Grade I illegally and unconstitutionally. She pointed out that several rules of the civil service were
discriminatory against women, especially that at the time of joining the services she had to take an
undertaking that she would resign from service if she got married.

The Court held that The

credibility of the Constitutional mandates shall not be shaken by government action not inaction but
it is the effect of the grievance of Ms. Muthumma that sex prejudices against Indian wonhood
pervades the service rules even a third of the century after freedom and thus struck down the
discriminatory service rule in this regard.
In Air India v. Nargesh Mirza,54 the Supreme Court upheld the requirement that an air hostess should
not marry before the completion of four years of service as it was sound and salutary provision.
However the court struck down the Air India regulation relating to retirement and pregnancy bar on
the service of Air hostesses as unconstitutional and discriminatory.
In Yousuf Abdul Aziz v. State of Bombay55 the validity of Section 497 0r the Indian Penal Code which
punishes onlya male participant in the offence of adultery was challenged. The Court upheld the
provion as a mandate under Article 15(3) as a special provision for the benefit of women. In
Sowmithi Vishnu v. Union of India56 the Court upheld Section 497 and stated that in case of adultery
52 (2002) 2 AISLJ 161.
53 (1979) 4 SCC 260.
54 (1981) 4 SCC 335.
55 AIR 1954 SC 321.
56 1985 Supp SCC 137.
21

keeping in mind the Indian setup, the wife is the victim and not the author of crime and thus such a
provision is in furtherance of the spirit of Article 15(3).
Furthermore gender equality has also been interpreted to call upon a right to live with dignity. In
Neera Mathur v. LIC57 the Court recognized the privacy was an important aspect of dignity and
personal liberty. In Chairman Railway Board v. Chandrima Das58read life as used under Article 21 to
include like with dignity and one worth living as enshrined in the Universal Declaration of Human
Rights. In Vishakha v. State of Rajasthan59 when there was no law protecting woman against sexual
harassment, the Court read gender equality as including protection against sexual harassment and
dignity and read it as a basic universal human right.
The Constitution has also provided safeguards against exploitation and human trafficking especially
of woman for immoral purpose. Article 23 of the Constitution of India specifically prohibits traffic in
human beings and includes human trafficking for prostitution, maid trade, bonded labour and the
devadasi system. In Vishal Jeet v. Union of India60 the Court has recognised the predominant evil of
prostitution and has called for its curtailment and eradication especially keeping in mind the human
trafficking violations.

In order to ensure that legal safeguards actually reach women, National Commission for Women was
setup in 1992 with the responsibility of overseeing the working of constitutional safeguards for
women. The 73rd Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third of
the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.
Furthermore the National Plan of Action for the Girl Child (1991-2000) has been taken up to ensure
survival, protection and development of the girl child with the ultimate objective of building up a
better future for the girl child. The Department of Women & Child Development in the Ministry of
Human Resource Development has prepared a National Policy for the Empowerment of Women in

57 (1992) 1 SCC 286.

58 (2000) 2 SCC 465
59 (1997) 6 SCC 241.
60 (1990) 3 SCC 318.
22

the year 2001. The goal of this policy is to bring about the advancement, development and
empowerment of women.

Chapter III.
SEEKING SUBSTANTIVE AFFIRMATIVE ACTION:
RESERVATION IN EMPLOYMENT OPPORTUNITIES
The protection and benefit takes a final culminating form when such action is in furtherance of actual
substantial benefit which primarily boils down to public employment to the persons belonging to the
Scheduled Castes and Scheduled Tribes. This step is crucial keeping in view the discrimination and
disabilities suffered by these classes to catch up and compete successfully with the more fortunate
ones in the matter of securing public employment. Specific provisions for reservations in services in
favour of the members of Scheduled Castes and Scheduled Tribes have been made as follows in the
Constitution of India:Article 16(1) provides:
There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.

Article 16(4):
Article 16 provides for equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State, Nevertheless, 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.
This clause (4) expressly provides 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

23

services under the state. Here the term state denotes both Central and state governments and their
instrumentalities.
The power conferred on the State can only be exercised in favour of a backward class and therefore,
whether a particular class of citizens is backward, is an objective factor to be determined by the
state. The Court held in Triloki Nath v. State of J & K,61 that State determination must be justiciable
and may be challenged if it is based on irrelevant considerations. Furthermore in Mohan Kumar
Singhania v. Union of India62, explaining the nature of Article 16(4) the Supreme Court has stated
that:
It is an enabling provision conferring a discretionary power on the state for making any provision or
reservation of any backward class of citizens which in the opinion of the state is not adequately
represented in the service of the state. Article 16(4) neither imposes any constitutional duty nor
confers any Fundamental Right on any one for claiming reservation. The state government takes the
total population of the backward class and their representation in the state services and after doing
the necessary exercise makes the reservation and provides the percentage of reservation for the
posts, then the percentage has to be followed strictly.
The issue with regards to Article 16 (4) mainly revolved around the precarious situation created by
the Article since an overwhelming majority in the nation was still backward socially, economically,
educationally, and politically. These victims of entrenched backwardness comprise the present
scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC). Even though, these
classes are generically the Backward Classes. However the nature and magnitude of their
backwardness are not the same.
The words ' backward class of citizens occurring in Article 16 (4) are neither defined nor explained
in the Constitution though the same words occurring in Article 15 (4) are followed by a qualifying
phrase, Socially and Educationally backward classes. In the course of debate in the Parliament on
the intendment of Article 16 (4), Dr. B.R. Ambedkar, expressed his views that backward classes
are which nothing else but a collection of certain castes.

61 AIR 1967 SC 1283.

62 AIR 1992 SC 1.
24

Incidentally, the onus fell on the Supreme Court which had to interpret this expansive and vague
definition of backward classes. In all its decisions on reservation has interpreted the expression
`backward classes' in Article 16 (4) to mean the socially and educationally backward. It also
emphatically rejected "economic backwardness" as the only or the primary criterion for reservation
under article 16 (4) and observed that economic backwardness has to be on account of social and
educational backwardness. The true meaning of this expression has been considered in a number of
cases by the Supreme Court starting from M. R. Balaji. In M.R. Balaji v. State of Mysore,63 it was
held that the caste of a group of persons cannot be the sole or even predominant factor though it may
be a relevant test for ascertaining whether a particular class is backward or not. The two tests
should be conjunctively applied in determining backward classes: one, they should be comparable to
the Schedule Castes and Schedule Tribes in the matter of their backwardness; and, two, they should
satisfy the means test, that is to say, the test of economic backwardness laid down by the State
government in the context of the prevailing economic conditions. Poverty, caste, occupation and
habitation are the principal factors contributing to social backwardness.
Later on in R. Chitralekha and Anr. v. State of Mysore and Ors. 64 and Triloki Nath v. J & K State 65
and K.C. Vasanth Kumar v. Karnataka66:
The apex Court explaining the meaning of Class observed that The quintessence of the definition
of Class is that a group of persons having common traits or attributes coupled with retarded
social, material (economic) and intellectual (educational) development in the sense not having so
much of intellect and ability will fall within the ambit of 'any backward class of citizens' under
Article 16 (4) of the Constitution.
Thus under no circumstances a class can be equated to a caste, though the caste of an individual
or a group of individual may be considered along with other relevant factors in putting him in a
particular class.

63 AIR 1960 SC 649.

64 1964 (6) SCR 368.
65 1969 (1) SCR 103).
66 1985 Supp. (1) SCR 352.
25

In State of Andhra Pradesh v. P. Sagar,67 it has been observed that the expression "class" means a
homogeneous section of the people grouped together because of certain likenesses or common traits
and who are identifiable by some common attributes such as status, rank, occupation, residence in a
locality, race, religion and the like. In determining whether a particular section forms a class, caste
cannot be excluded altogether. But in the determination of a class a test solely based upon the caste
or community cannot also be accepted.
In Triloki Nath v. J & K State (II) 68Shah, J., speaking for the Constitution Bench has reiterated the
meaning of the word 'class' as defined in the case of Sagar and added that "for the purpose of Article
16 (4) in determining whether a section forms a class, a test solely based on caste, community, race,
religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend
the Constitution. The expression backward class is not used as synonymous with backward caste
or backward community. The members of an entire caste or community may in a social, economic
and educational scale of values at a given time be backward and may on that account be treated as a
backward class, but that is not because they are members of a caste or community, but because they
form a class.
Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr.

69

was of the

view that In ascertaining social backwardness of a class of citizens it may not be irrelevant to
consider the caste of the group of citizens. Caste cannot however be made the sole or dominant
test...
In 1978, two years after Thomas, the government established a new Backward Classes Commission,
known as the Mandal Commission, to identify communities that were socially and educationally
backward.70 The Commission ignored prior Supreme Court holdings and used the term caste
synonymously with class; it also utilized eleven criteria for determining social and economic
backwardness. While the Kalelkar Commission had identified 2,399 castes as socially and
educationally backward, (SEBC) the Mandal Commission identified 3,743 castes as fitting that
67 1968 (3) SCR 595.
68 1969 (1) SCR 103.
69 1977 (1) SCR 194.
70 K.D. Saksena, Policy Changes Needed on Reservations, ECON. & POL. WEEKLY, June 30, 2007, at 2494
26

category. The methodology used by the Commission was fraught with errors. First, the Commission
claimed that 52% of India's population was taken by the British in India in 1931.71 This percentage is
inconsistent with the findings of the National Sample Survey's 1999-2000 findings that only 36% of
the nation's population comprises OBC communities.72 However, in August 1990, the federal
government decided to implement one part of the Mandal Commission report-the recommendation
that 27% of vacancies in government employment be reserved for those communities labeled as
OBCs. Violent protests followed.73 In August 1992 the Supreme Court passed judgment in what is
popularly referred to as the Mandal case.74
Thus the Supreme Court through the Indira Sawhney and Ors. Vs. Union of India and Ors.

75

judgment tried to redeem the situation and thus observed that:

The meaning of the expression backward classes of citizens is not qualified or restricted by
saying that it means those other backward classes who are situated similarly to Scheduled
Caste and/or Scheduled Tribes. Backwardness being a relative term must in the context be
judged by the general level of advancement of the entire population of the country or the
State, as the case may be.

There is adequate safeguard against misuse by the political executive of the power u/Art.
16(4) in the provision itself. Any determination of backwardness is neither a subjective
exercise nor a matter of subjective satisfaction. The exercise is an objective one. Certain
objective social and other criteria have to be satisfied before any group or class of citizens
could be treated as backward. If the executive includes, for collateral reasons, groups or
classes not satisfying the relevant criteria, it would be a clear case of fraud on power.

71 George H. Gadbois Jr., Mandal And The Other Backward Classes: Affirmative Action In India In The 1990s, 1 U.S.F.
J. L. & Soc. Challenges 71 1997.

72 Suijit Bhalla & Sunil Jain, Quota: Just How Many OBCs Are There?, REDIFF NEWS, May 8, 2006, available at
http://in.rediff.com/money/2006/may/08quota.htm. (last visited on September 20, 2013)

73 V.P. Singh to be Cremated at Sangam Today, HINDUSTAN TIMES, Nov. 29, 2008, available at
http://www.htmedia.in/Section.aspx?Page=Page-HTMedia-AboutUs (last visited on September 20, 2013)

74 Indra Sawhney v. Union of India, 1992 A.I.R. 80 S.C. 447.

75 1992 Supp (3) SCC 212.
27

Caste neither can be the sole criterion nor can it be equated with 'class' for the purpose of
Article 16 (4) for ascertaining the social and educational backwardness of any section or
group of people so as to bring them within the wider connotation of 'backward class'.
Nevertheless 'caste' in Hindu society becomes a dominant factor or primary criterion in
determining the backwardness of a class of citizens.

Unless 'caste' satisfies the primary test of social backwardness as well as the educational and
economic backwardness which are the established and accepted criteria to identify the
'backward class', a caste per se without satisfying the agreed formulae generally cannot fall
within the meaning of 'backward class of citizens' under Article 16 (4), save in given
exceptional circumstances such as the caste itself being identifiable with the traditional
occupation of the lower strata - indicating the social backwardness. And Class has
occupation and Caste nexus; it is homogeneous and is determined by birth. It further
approved Chitralekha case.

Thus backwardness is not a static phenomenon. It cannot continue indefinitely and the State is
entitled to review the situation from time to time.76
The 77th Amendment to the Constitution has been brought into effect permitting reservation in
promotion to the Scheduled Castes and Scheduled Tribes by inserting Article 16 (4-A):
Nothing in this article shall prevent the state from making any provision for reservation in matters of
promotions, with consequential seniority, to any class or classes of posts in services under the state
in favour of SCs/STs which in opinion of state, are not adequate by represented in the services under
the state.
Thus, by amending the Constitution, the Parliament has removed the base as interpreted by Supreme
Court in Indira Sawhney that the appointment does not include promotion. Article 16(4A) thus
revives the interpretation put on Article 16. Rule of reservation can apply not only to initial
recruitments but also to promotions. But no promotion can be made in promotion posts for the
OBCs. The Supreme Court has emphasized that Article 16(4A) ought to be applied in such a manner
that a balance is struck in the matter of appointments by creating reasonable opportunities for the
reserved classes as well as for the other members of the society.

76 Jagdish Negi v. State of U.P.AIR 1997 SC 3505.

28

Furthermore, The Constitution (Eighty- First Amendment) Act, 2000 has added Article 16(4B) to the
Constitution. The Amendment envisages that the unfilled reserved vacancies are to be carried
forward to the subsequent years and these vacancies are to be treated as distinct and separate from
the current vacancies during any year. Article 16 (4-B) thus provides:
Nothing in this article shall prevent the State from considering any unfilled vacancies of a year
which are reserved for being filled up in that year in accordance with any provision for reservation
made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any
succeeding year or years and such class of vacancies shall not be considered together with the
vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent
reservation on total number of vacancies of that year.
The rule of 50% reservation laid down by the Supreme Court is to be applied only to normal
vacancies. This means that the unfilled reserved vacancies can be carried forward from year to year
without any limit, and are to be filled separately from the normal vacancies. This Amendment also
modifies the proposition laid down by the Supreme Court in Indira Sawhney.77
A Call for Efficiency: Article 335
Article 335: provides that the claims of the members of the SCs and STs shall be taken into
consideration, consistently with the maintenance of efficiency of administration in the making of
appointments in services and posts in connection with the affairs of the Union or of a State.
There has been some debate as to whether Art.335 had any limiting effect on the power of
reservation conferred by Art. 16 (4). The nine judge bench of the Supreme Court in Indira Sawhney
considered the argument that the mandate of Art.335 implied that reservation should be read subject
to the qualification engrafted in Art.335 i.e. consistently with the maintenance of efficiency of
administration. Dealing with the argument majority framed an issue as to whether reservations were
anti-meritarian? The majority then observed that may be efficiency, competence and merit are not
synonymous concepts; may be it is wrong to treat merit as synonymous with efficiency in
administration and that merit is but a component of the efficiency of an administration.

77 Karthik Nagarajan, Compensatory Discrimination in India Sixty Years After Independence: A Vehicle of Progress or
a Tool of Partisan Politics?, 15 Wash. & Lee J. Civ. Rts. & Soc. Just. 483 2008-2009.

29

Even so the relevance and significance of merit at the stage of initial recruitment cannot be ignored.
It cannot also be ignored that the very idea of reservation implies selection of a less meritorious
person. At the same time, we recognise that this much cost has to be paid, if the constitutional
promise of social justice is to be redeemed. We also firmly believe that given an opportunity,
members of these classes are bound to overcome their initial disadvantages and would compete withand may in some cases, excel members of open competitor candidates. It is undeniable that nature
has endowed merit upon members of backward classes as much as it has endowed upon members of
other classes and what is required is an opportunity to prove it.
But in case of Article 16, Article 355 would be relevant. It may be permissible for the government to
prescribe a reasonably lower standard for scheduled castes/Scheduled tribes/backward classes
consistent with the requirements of efficiency of administration. It would not be permissible not to
prescribe any such minimum standard at all. While prescribing the lower minimum standard for
reserved category, the nature and duties attached to the post and the interest of the general public
should also be kept in mind. While on Article 355, we are of the opinion that there are certain
services and positions where merit alone counts. In such situations, it may not be advisable to
provide for reservations. For example technical post in Research and Development
organisations/departments/institutions, super specialities in medicine, engineering etc.
Quantifying Reservation
Anything within a limited amount may be beneficial but too much of it can have serious
repercussions. Similar notion had been followed by the Honble Supreme Court which has set its
face, generally speaking, against excessive reservation, for it is bound to effect efficiency and quality
by eliminating general competition.
In Balaji, the question was raised before the Supreme Court relating to the extent of special
provisions since in this case reservation was made up to 68% by the State of Mysore for backward
classes for admission to the state medical and engineering colleges, leaving only 32% seats for the
merit pool. The Court rejected the rule of 68% reservation and insisted that article 15(4) being a
special provision cannot denude article 15(1) of all its significance since Article 15 (4) is not a
provision which is exclusive in character, so that in looking after the advancement of those classes,
the State should be justified in ignoring altogether the advancement of the rest of the society.
The Court emphasised that a special provision contemplated by Article 15 (4) must be within
reasonable limits since the interests of the weaker section have to be adjusted with the interests of the
community as a whole and thus cannot be more than 50%. However later on in A.B.S.K. Sangh (Rly)
30

v. Union of India the Court diluted its view and stated that there is no fixed ceiling for Scheduled
Caste and Scheduled Tribe though preferably the ceiling should be 50%. 78 However in Indira
Sawhney v. Union of India, the Supreme Court restored its original position and declared that
keeping in mind the spirit of fair representation, reservation shall not exceed 50%. 79 The majority
pointed out that cl. (4) of Art. 16 spoke of adequate representation and not proportionate
representation-although the proportion of population of backward classes to the total population
would a relevant factor. After referring to the earlier decisions of the Court, the majority concluded
that the reservation contemplated in cl. (4) of Art. 16 should not exceed 50%.
Furthermore no cent percent reservation since the state is not entitled to make a cent percent
reservation. That would be violative of Art.16 of the Constitution. The Supreme Court has ruled time
and again, that where there is no only one post in the cadre, there can be no reservation for the
backward class with reference to that post either for recruitment at the initial stage or filling up a
future vacancy in respect of that post otherwise the same would amount to 100 per cent reservation.
80

A single promotional post can also not be reserved.

In case of Post Graduate Institute of Medical Education & Research, Chandigarh 81 it has been
categorically stated that unless there is plurality of posts in a cadre, the question of reservation will
not arise because any-attempt at reservation by whatever means and even with device of rotation of
roster in a single post cadre is bound to create 100% reservation of such post whenever such
reservation is to be implemented.
A Safety Valve: Concept of Creamy Layer
The concept of creamy layer is a safeguard at the same time a step to make the most deserving and
underprivileged section of the backward class the benefits of reservation. Thus following major
judgments are to be analysed in this regard to understand the wholesomeness of the creamy layer
concept:
78 AIR 1981 SC 298.
79 AIR 1993 SC 477.
80 Chankradhar Paswan v. State of Bihar, AIR 1988 SC 959.
81 1998 (4) SCC 1.
31

Indira Sawhney v. Union of India

Indira Sawhney v. Union of India(II)
Ashoka Kumar Thakur v. State of Bihar
Ashoka Kumar Thakur v. Union of India.

In the Mandal commission case, the Supreme Court has clearly and authoritatively laid down that the
socially advanced members of the backward class, the creamy layer, has to be excluded from the
backward class and the benefit of reservation under Article 16(4) can only be given to a class which
remains after the exclusion of the creamy layer. This would more appropriately serve the purpose
and object of Article 16(4). The Supreme Court pronounced in the Indira Sawhney and Ors. v. Union
of India case which excluded the creamy layer from affirmative action benefits 82. Further, the Court
herein directed the Central and State Government(s) to specify a socio-economic criterion to exclude
advanced persons/ sections (Creamy Layer) from OBCs (27 percent reservation). 83 According to
Justice Jeevan Reddy the exclusion of the creamy layer must be on the basis of social advancement
and not on the basis of economic interest alone. In Indira Sawhney v. Union of India, all the judges
except Pandian, J. held that the means test should be adopted to exclude the better off individuals
from the protected group for the purpose of reservation. 84 They, however, added that the basis of
exclusion should not be only economic unless economic advancement is so high that it necessarily
means social advancement. A committee chaired by Justice Ram Nandan Prasad was formed by the
Government to set the above mentioned criteria as per the Supreme Courts judgment.
Recommendations made by the committee were accepted by the Government. 85 The commission
recommended the following criteria for the exclusion of the creamy layer in the Indian society. The
82 Indira Sawhney v. Union of India, AIR 1993 SC 477. The Court held that in the reservation for the
backward classes, the creamy layer should be excluded. The exclusion makes the class a truly backward class.
The very concept of class denotes a number of persons having certain common traits which distinguish them
from the others. In a backward class if the connecting link is the social backwardness it should be the same. If
some of the members are far too socially advanced, then the connecting link between them snaps. They would
be misfits in the class. After excluding them alone would the class be a truly backward class. The SC therefore
directs the Government to specify the criteria for such exclusion, income or extent of holding or otherwise.
83 In the recent Ashoka Kumar Thakur v. Union of India, [2008(1) BLJR 1292] judgment, the Court has also
emphasized on the Educational criteria, in that those completing their graduation cease to remain backward,
and hence move out of the ambit of reservation benefit (per Dr. Arijit Pasayat (for himself and Thakker, J.)
and Raveendran, JJ).
84 Indira Sawhney v. Union of India, AIR 1993 SC 477.
85 The National Commission for the Backward Classes had been asked by the Government to review the
income criteria for excluding the creamy layer from amongst the OBCs.
32

recommendation was that the following persons will be excluded from OBCs and they are
considered as the creamy layer in India

Son(s)/daughter(s) of persons holding Constitutional positions (i.e. President, Vice-President,

Judges of Supreme Court and High Courts, Chairman and Members of the Union and State
Public Service Commissions, Chief Election Commissioner, Comptroller and Auditor
General of India;

Persons whose parent(s) is(are) Class I Officer;

Persons whose parent(s) is(are) in the rank of Colonel and above in the Army and equivalent
posts in the Navy and Air Force and the para-military forces;

Persons whose families own irrigated land, which is equal to or more than eighty-five percent
of the ceiling limit in terms of irrigated land as per State land ceiling laws;

Persons having gross annual income of Rs. 2.50 lakh and above; or

Persons possessing wealth above the exemption limits prescribed in the Wealth Tax Act for a
period of three consecutive years (income for salaries or agricultural land shall not be
clubbed).86

The Kerala Legislature passed an Act in 1995 declaring that there was no creamy layer in the State of
Kerala. The validity of the State Act was challenged in the Supreme Court in Indira Sawhney v.
Union of India (II).87 The Court explained in this regard that the underlying rule of exclusion of
creamy layer stating that the creamy layer due to its status now does not deserve reservation and thus
their non-exclusion will be discrimination and violative of Article 14 and 16. The Court declared the
Kerala Act as a mere cloak to the facts in existence. Equality being a basic feature of the
Constitution, neither the State nor the parliament can transgress this principle.

86 Press Information Bureau National Commission for Backward Classes To Review The Income Criteria
For Excluding The Creamy Layer From Amongst The OBCs (2003) at
http://pib.nic.in/archieve/Ireleng/1yr2003/roct2003/08102003/r081020035.html (last visited on August 27,
2013)
87 AIR 2000 SC 498.
33

In Ashoka Kumar Thakur v. State of Bihar,88 the Constitutional validity of the criteria for determining
the creamy layer for the purpose of exclusion from backward class laid down by the State of Bihar
and the State of Uttar Pradesh was struck down because of over-inclusion.89
In Ashoka Kumar Thakur v. Union of India,90 a PIL was filed to challenge the conclusion of the
Mandal Commission91 that about 52% of the total population of India belonged to Other Backward
Classes classification. The National Sample Survey Organisation had estimated the OBC segment to
be 32 per cent. In April 2006, the government in power decided to reserve nearly 27% of seats for
students from the OBC segment in institutes of higher learning in India. This would have, in effect,
reduced the seats for a general, unreserved candidate to about 50%, after considering other reserved
seats(for SCs and STs). The Indian Parliament passed a Bill to bring out an Amendment in the
Constitution in this regard. The validity of the amendments was challenged by Mr. Thakur in this
case.
The Supreme Court of India in response to the PIL, refused to stay the Constitutional Amendment
but issued notice to the government. The government which had faced strong anti-reservation
protests on its turn stated that that the reservation policy would not be implemented until a bill, The
Central Educational Institutions (Reservation in Admission) Bill, 2006 introduced in the Parliament
in August 2006 for this purpose, becomes a law. The Bill was later approved by the Parliament. 92 The
Supreme Court, as an interim measure, stayed the operation of admission to medical and professional
institutions for OBCs under the 27% quota category for the year 2007-2008 and directed that all
cases (including this one) should be listed for the third week of August for final hearing and disposal
on the issue.93
88 Ashoka Kumar Thakur v. State of Bihar, (1995) 5 SCC 403.
89 It was laid down that on the face of it the criteria was arbitrary and violative of Articles 16(4) and 14 and
the law laid down in the Indira Sawhney case. It had included sections of population which should have been
excluded if the law laid down in the Indira Sawhney case had been followed.
90 Ashoka Kumar Thakur v. Union of India, 2008 (1) BLJR 1292.
91 It was appointed by the Charan Singh Government in 1979.
92 http://www.ndtv.com/template/template.asp? (last visited on August 27, 2013).
93 http://www.courtnic.nic.in/supremecourt/temp/wc26506p.txt (last visited on August 27, 2013).
34

The Supreme Court, upheld the Constitutional Amendment law providing 27 percent quota for Other
Backward Classes (OBCs) in Institutions of higher education like IITs and IIMs and other Central
Educational Institutions.94 However, the Court kept the creamy layer out of the OBCs reservation
benefit. The court has no doubt agreed with the Union government that the other backward classes
need to be placed on the same footing as the scheduled castes and scheduled tribes. But in a
significant pronouncement it has excluded the affluent and the forward sections among the OBCs
who, in the courts opinion, are not socially disfranchised, from this benefit.
The Supreme Court must also be thanked for cleverly outlining what the creamy layer should
mean, and giving certain clearly understandable criteria such as an income limit, membership of
organised Class 1 Central or All-India services, and membership of Parliament or the state
legislatures.95 Earlier, there were no such criteria, except for a somewhat ad hoc definition brought
out by the Planning Commission in 1992.96 Thus the Supreme Court has in a way fostered a balance.

Chapter IV.
REPRESENTING RESERVATION IN DEMOCRACY:
RESERVATION IN LOK SABHA AND LEGISLATIVE
ASSEMBLIES.

94 Kyle Rene,"This Seat's Taken" - Affirmative Action Policy at Institutions of Higher Education in the United States
and India 3 Geo. J. L. & Mod. Critical Race Persp. 303 2011.
95 The government will broadly go by the following parameters to identify socially advanced persons/sections of
OBCs. Their children will not be eligible for 27 per cent reservation to centrally aided educational institutions:1. Persons
whose annual income is Rs. 2.5 lakh per annum and above. (There is a speculation that this is likely to be upped to Rs. 4
lakh). 2. Those who hold constitutional posts 3. Group A (Class I officers) and Group B (Class II services) including
employees holding equivalent posts in PSUs, banks, insurance companies and universities 4. Officers of the armed forces
of the rank of colonel or an equivalent post or above 5. Professionals and those who engage in trade, business and
industry 6. Those who hold irrigated agricultural land equal to or more than 85 per cent of the statutory ceiling area for a
particular state.
Available at http://www.business-standard.com:80/common/news_article.php?leftnm=3&autono=319771 (last visited on
August 27, 2013)

96 Nitish Sengupta, OBC quotas: Creamy layer and all that, Courtesy: The Asian Age; May 4, 2008, available
at http://www.socialcause.org/getarticlefromdb.php?id=1966 (last visited on August 27, 2013).
35

The penultimate reservation lies in providing an inlet to the depressed classes in the mainstream
national politics so that they can also have a say in the functioning of the nation. Under Article 330,
seats are to be reserved for the Scheduled Castes and Scheduled Tribes in the Lok Sabha. Similarly
under Article 332, seats are to be reserved for the Scheduled Castes and Scheduled Tribes (excluding
the tribes in the autonomous districts of Assam) in the legislative assemblies. Originally, this
reservation was to operate for 10 years from the commencement of the constitution. But this duration
has been extended continuously by 10 years each time. Parliament has approved the Constitution
(109th amendment) Bill, 2009, for providing reservation of seats for Scheduled Castes and
Scheduled Tribes in the Lok Sabha and the Legislative Assemblies for another 10 years (Article 334
(a)).
The fact that the reservation of seats in the legislatures is not on a permanent basis, but is at present
provided for a 10 year period at a time, shows that it is envisaged that the Scheduled castes and
scheduled tribes would ultimately assimilates themselves fully into political and national lives of the
Country so much so that there would be no need for any special safeguards for them and that there
would be no need to draw a distinction between one citizen and another. Their condition would
improve so much that they would feel that their interests are secure without any kind of reservation.
Furthermore a member of the Scheduled Caste and Scheduled Tribe will not be debarred from
contesting a general non-reserved seat.97

CHAPTER V.
THE FALLACY OF RESERVATION: A BRIEF ANALYSIS
The impact of the reservation policy on employment in India, with reference to the reserved
categories. There has been a remarkable increase in the numbers of SC/ ST Government employees
over the years. In 1960, the absolute numbers of the SC Government employees stood at 228
thousand, which increased to 590 thousands in 1990, and further to 540 thousand in 2003. The
percentage share of the SC employees to the total Government employees was 12.24 percent in 1960,
which increased to about 17 percent in 2003; fairly close to their percentage share in the population.
In the case of the STs, their absolute numbers increased from 37 thousand in 1960 to 211 thousand in
2003 with a corresponding increase in their percentage share from 2 percent in 1960 to 6.46 percent
in 2003.

97 VV Giri v. D.S. Dora, AIR 1959 SC 1318.

36

Similarly, the absolute numbers of the SC employees in the PSUs increased from 40 thousand in
1971 to 236 thousand in 2004 and from 12 thousand to 114 thousand for the STs. The absolute
numbers of the SC employees in nationalised banks increased from 55 thousand in 1978 (10 percent)
to 143 thousand in 2004 (17.6 percent) and from 8 thousand (1.56 percent) to 43 thousand (5.72
percent) for the STs. The data mentioned above does not include Government spheres like education
and it is hoped that with the inclusion of these sectors, the absolute numbers of SC/ST employees
under reservation will further increase.
Though, there is a marked improvement in the absolute numbers of the SCs and the SCs in
Government employment, however, there are considerable variations among different Groups of jobs
especially in Grade I and II jobs.
In 2003, almost ninety five percent of the SC/STs were coalesced in Grade III and IV jobs. Though,
the low percentage share of the marginalized social groups in higher categories of employment
suggests that forms of resistance are higher in the higher echelons of jobs. One of the prominent
limitations of the present reservation policy remains the absence of a Reservation Act and a provision
of checks against those who wilfully avoid the implementation of the reservation policy. Despite the
rhetoric on empowerment of the SCs and the STs and the existence of extensive laws and provisions,
not much has been achieved in actual terms. While a few continue to question the need for
reservations, it should be understood (as is sufficiently established by the analysis) that the policy has
never been fully implemented from the time of its conception. 98 Furthermore even with regards to
higher education to the increase in SC enrolment has increased only from 7.08% to 13.30% from
1979 to 1996.99 However, the 2001 Census reports a ten-year 73 jump of 27 percent in national
literacy (to 65 percent).100 What is harder to pinpoint is how much improvement can be credited to
reservations and how much might have occurred without them as a result of general government
development policies and economic growth.

98 Sukhdadeo Thorat and Chittaranjan Senapati, Reservation Policy in India: Dimensions and Issues, Indian Institute of
Dalit Studies Volume I, Number 02.

99 National Commission for Scheduled Castes and Scheduled Tribes, Annual Report: 1996-97 &1997-98, 60.
100 Literacy Rate: India, Census of India, http://www.censusindia.net/results/provindia3.html. (last visited
on August 27, 2013)
37

CONCLUSION
The biggest impending socio legal problem which has divided Indian society into two halves is
reservation. Affirmative action has been supported on the ground that a particular group has been
oppressed in the society and special measures can be undertaken for the upliftment of that group by
an institution who has no history of committing racial discrimination. It is contended that it helps in
overall well being and integration of the society. The Constitution of India apparently adopts this
view with regard to affirmative actions and reservations. The Constitution clearly recognises that
there are castes and classes which are in need of special support and protection and the dream of a
strong nation will remain unfulfilled unless these classes are brought in the mainstream of the society
through various measures. Reservation in services is one such measure.
In 1947, when majority of the population of India was backward such a provision was necessary in
order to ensure that services are not monopolised by a small section of the population. It was adopted
as a means to push up the backward sections of the population and to bring them into the mainstream
of Indian life. However the vile use of such a beneficial provision has time and again been used for
vicious vote ban politics. Furthermore reservation has always not had a natural trickle down
consequence rather it has been often utilised by the powerful to further their objective. It is here
where the Supreme Court has in a way fostered a balance, by denying benefits to those who may per
se be from the backward class but in fact are advanced thus striking at the creamy layer.
It is submitted and has rightly been endorsed by the Apex Court that unless the creamy layers are
excluded, there is always the danger that they will corner all the advantages for themselves, leaving
those backwards among the OBCs as deprived as in the past. This is not a new or a far-fetched
apprehension. Indeed, this has been the experience with reservations for the scheduled castes and
scheduled tribes, now nearly six decades old. It is to be considered that when our Constitution came
into being in 1950, it mandated that the reservation for the scheduled castes and scheduled tribes was
to be in force for only 25 years. The underlying logic was that the reserved quotas would enable
these castes forced into backwardness by centuries of caste disabilities and untouchability to attain
equality with the upper castes during this period, so that India could then truly be described as a
casteless society. It is, however, submitted that experience has shown otherwise.
However a primary concern revolves around the fact that whether the creamy layer formula, so
successfully endorsed by the highest court for OBC reservations, should not be extended to
reservations for the scheduled castes and scheduled tribes as well. If this is done, this will surely
38

extend the coverage of reservations to much wider sections of the scheduled castes and scheduled
tribes and, in that process, better serve the underlying object of reservations.
Reservations will continue to play a useful role but will likely be a diminishing part of the solution
since there are major flaws. Reservations apply to the public sector but not the private sector, the
probable growth area of the Indian economy. Then there are tens of millions of persons living in rural
areas and not part of the organized economy.101
The reservations system would benefit markedly from an administrative face-lift. As recommended
by the Commission for Scheduled Castes and Scheduled Tribes, a comprehensive act, articulating the
policy, is needed. The revision and streamlining of procedures, such as SC certification, might help
curb abuse. In addition, social programs such as those directed at improving the education system,
especially at the primary level and in rural areas, should be given more emphasis. It is thus time for
Indians to go beyond mere reservations and embrace a more wholesome form of affirmative action
especially focusing on the poor and needy that are downtrodden in fact and not merely in their name.

101 Report of the Commissioner for Scheduled Castes and Scheduled Tribes 1974-75 (New Delhi:
Government Printer, 1976), 17.
39

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40

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1. Air India v. Nargesh Mirza, (1981) 4 SCC 335.

2. Ashok Kumar Thakur v.Union of India, (2008) 6 SCC 1
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13. Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697
14. Jagdish Negi v. State of Uttar Pradesh, AIR 1997 SC 3505
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16. K.C. Vasanth Kumar v. Karnataka, 1985 Supp. (1) SCR 352
17. K.S. Jayasree v. State of Kerela, AIR 1976 SC 2381
41

18. M.R. Balaji v. State of Mysore, AIR 1963 SC 649

19. Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1
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23. Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538.
24. Sowmithi Vishnu v. Union of India 1985 Supp SCC 137.
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26. State of Kerala v. N.M. Thomas, AIR 1976 SC 490
27. State of Madhya Pradesh v, Nivedita Jain, AIR 1981 SC 2045
28. State of Madras v. Champakam Dorairajan, AIR 1951 SC 226
29. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 52.
30. SV Balaram v. State of Andhra Pradesh, AIR 1972 SC 1375
31. T.Devadasan v. Union of India, AIR 1964 SC 179
32. Triloki Nath Tiku v. State of Jammu and Kashmir, AIR 1987 SC 1283
33. Vishakha v. State of Rajasthan (1997) 6 SCC 241.
34. Vishal Jeet v. Union of India (1990) 3 SCC 318.
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43