Reservation Policy in India: Legal Analysis

________________________________________________________
Research paper submitted to Guru Gobind Singh Indraprastha University, Delhi in

Partial fulfilment of the requirement of Degree of Bachelor of Law

Submitted By

KARAN BAHMANI

21310303813

AMITY LAW SCHOOL

BLOCK F-1, AMITY UNIVERSITY,

SECTOR 125, NOIDA-201303

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 ABSTRACT

The goal of reservation in India has been to bring about an improvement in the condition of
those members of the society who, historically, have been economically and socially
oppressed. But, in arriving at this judgement about who should be eligible for reservation, the
criterion has been a persons caste, tribe or class rather than his income or wealth.
Consequently, many socially and educationally backward groups have benefited from this as
also those who cannot be regarded as backward anymore.

Constitutional Provisions on reservation in India elaborate the idea enshrined in our preamble
about making India into a Sovereign, Socialist, Secular and Democratic Republic as also in
the Directive Principles of State Policy. It promises to all its citizens, equality in Justice,
economic, social and political matters. The concept of equality enshrined in the Preamble has
also found expression in the fundamental rights from Articles 14 to 16 in the Constitution on
India. The Reservations for SC, ST and OBC is mainly provided in Article 14, Article 15 and
Article 16.

Article 14 of constitution on India states that the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.

While Equality before the law is negative concept; Equal protection of the laws is a
positive one both embody the concept of Rule of Law 1 and Equal Justice. The former
declares that everyone is equal before law, that no one can claim privileges and that all
classes are equally subject to the ordinary law of the land. Equal protection of Law, on the
other hand means, that among equals, the law should be equal and equally administered. That
like should be treated as like. Or in other words, persons differently circumstanced need not
be treated in the same manner. The guarantee of equal protection thus is a guarantee of
equal treatment of persons in equal circumstances permitting differentiation in different
circumstances. If there were a reasonable basis for classification, different treatment would be
as per the law and the Constitution.

This in short, is the spirit and essence of the Reservation Policy in India where reservations
have been granted to three categories viz. SC, ST and OBC.

KEYWORDS: Reservation Policy, Scheduled Caste (SC), Scheduled Tribe (ST), Other
Backward Classes (OBC), Equality

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Our Constitution Subhash C. Kashyap 2015 Page 102

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 INTRODUCTION

This Research Paper on Reservation Policy in India: Legal Analysis examines the matter
with regard to the reservations for SC, ST and OBC only for whom 49.5% seats are reserved
jointly.

The Fundamental Rights are guaranteed to protect the basic human rights of all citizens of
India. One such Fundamental Right is the Right to Equality as enshrined in Article 14 of the
Constitution of India.Articles 15, 16, 17 and 18 of the Constitution of India also highlight the
Right to Equality in its various dimensions.Theserefer to equality in the eyes of law,
discarding any unfairness on grounds of caste, race, religion, place of birth and sex. It also
includes equality of prospects in matters of public employment, abolition of untouchability
and abolition of titles. Right to Equality is considered by some to be the foundation of all
other rights and privileges as are granted to the Indian citizens by the Constitution of India.

OBJECTIVE OF RESERVATION

The primary stated objective of the Indian Reservation System is to increase the opportunities
for enhanced social and educational status of the underprivileged communities and thus uplift
their lifestyle to have their place in the mainstream of Indian society. The Reservation System
exists to provide such opportunities for the members of the Scheduled Castes(SC), Scheduled
Tribes(ST) and Other Backward Classes(OBC) to increase their political representation in the
parliament/state legislatures, Government schools, colleges, and other public
institutions/employment.
RESERVATION UNDERSTOOD

Reservation in India has been 2understood as the process of setting aside a certain percentage
of seats inGovernment/public institutions, schools, colleges etc for members of backward and
under-represented communities (defined primarily by caste and tribe). Reservation is a form
of quota-based affirmative action. Reservation is governed by constitutional laws, statutory
laws, and local rules and regulations. Scheduled Castes (SC), Scheduled Tribes (ST) and

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Indian Constitution and Political Theory B.B.Tayal 2011 Page No. 199

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Other Backward Classes (OBC) are the primary beneficiaries of the Reservation policies
under the Constitution with the object of ensuring a "level" playing field.

BACKGROUND: CRITERIA OF RESERVATION

During the 3Vedic period, the varna system was used. However, it was possibly based on the
profession which one chose rather than based on the birth. Also, it was possibly not elitist
during the Vedic times implying that all castes were considered equal. The system consisted
of four ranked varnas. A person's varna was defined by his or her socio-economic duties
(broadly classified into four classes or Varnas vis Brahmins, Vaishyas, Kshatriyas and
Sudras). These duties were either voluntarily performed or were assigned by the local
administratorone's varna was initially not defined by one's birth into any particular family.

However, over the centuries, from the time of Adi Shankar (whose birth date is controversial
but possibly before the Christian era, and who re initiated Hinduism as a religion), the system
changed to caste, based on the birth of the person born in a particular family than by his
karma or profession.
Hence, it can be said that at present the criteria of Reservation is the specific caste, tribe and
the backwardness of the communities as notified by the Government of India from time to
time.
The constitutional provision in regard to SC is Article 341 while for ST it is Article 342
which are reproduced below:

Article 341. Scheduled Castes

(1) The President may with respect to any State or Union territory, and where it is a State,
after consultation with the Governor thereof, by public notification, specify the castes, races
or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this
Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as
the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified
in a notification issued under clause (1) any caste, race or tribe or part of or group within any

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NCERT Class XII Sociology Chapter 3 Socials Institutions Continuity and Change

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caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not
be varied by any subsequent notification.
Article 342. Scheduled Tribes
(1) The President may with respect to any State or Union territory, and where it is a State,
after consultation with the Governor thereof, by public notification, specify the tribes or tribal
communities or parts of or groups within tribes or tribal communities which shall for the
purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or
Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified
in a notification issued under clause (1) any tribe or tribal community or part of or group
within any tribe or tribal community, but save as aforesaid a notification issued under the said
clause shall not be varied by any subsequent notification.

SC ST AND OBC: AN UNDERSTANDING

Scheduled Castes (SC)

Originally these were the untouchable castes of India. They lived outside the villages and
were required to the 'dirty' jobs, such clearing faeces, dead animals, leather work etc. They
were not allowed to own land or property, enter places of worship, homes etc. They were also
not allowed to touch upper-caste food, money, clothing because they were considered
inferior. Subsequently, they came to be called asHarijans or Dalits. At present, many in this
community are no longer engaged in the above professions and are in the mainstream of
Indian society, educated, wealthy and occupying important positions in all fields. However,
they are entitled for Reservation on account of the caste to which they belong irrespective of
the economic criteria.

Scheduled Tribes (ST)

These are the tribals of India who live in forests; they are nomadic tribes as well. They are
not a part of any organized religion. They have their own dressing styles, traditions, food and
culture. However, they were considered outcastes on the basis of which they were granted
reservation. The present position is that many of these tribes are no longer stationed in their
native places and have migrates to cities and are economically well off.

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However, they fall under the reservation if their tribe is notified by the government to be
entitled for the benefits.

Other Backward Class (OBC)Creamy/Non-Creamy Layers

These were originally peasants who were socially, educationally and economically backward.
They were between the upper-castes and the Scheduled Castes in terms of social
hierarchy,but were discriminated nevertheless. They were traditionally poor, illiterate and
mostly engaged in agriculture, herding and allied fields. There are tensions between the
OBCs and SCs often leading to clashes.
The status of an OBC category is determined by the Government of India from time to time
which notifies the backward classes. There is no permanency to these classes which can be
changed by the government. An addition in these classes only the people of the non-creamy
layer are entitled to reservation while the creamy layer is outside the ambit. The criteria for
creamy layer is monetary which at present is Rs.8 lakhs per annum and above.

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 CONSTITUTIONAL PROVISIONS

Preamble:

Every Constitution has a philosophy of its own. The preamble of our constitution proclaims
the resolution of PEOPLE OF INDIA, to constitute India into a SOVEREIGN, SOCIALIST,
SECULAR, DEMOCRATIC REPUBLICand to secure to all its citizens:

JUSTICE, social, economic and political;LIBERTY of thought, expression, belief, faith and
worship;EQUALITY of status and of opportunity; and to promote among them
allFRATERNITY assuring the dignity of the individual and the unity and integrity of the
Nation;

The word Social Justice in the preamble implies recognition of greater good to a larger
number without deprivation of legal rights.

The concept of equality enshrined in the Preamble has also found expression as a
Fundamental Right in Article 14 to Article16.

RIGHT TO EQUALITY

Article 14. Equality before lawThe State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.

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

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(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State
from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission to educational institutions
including private educational institutions, whether aided or unaided by the State, other than
the minority educational institutions referred to in clause (1) of article 30.

Article 16. Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the Government
of, or any local or other authority within, a State or Union territory, any requirement as to
residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation
in matters of promotion, with consequential seniority, to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in
the opinion of the State, are not adequately represented in the services under the State.
(4B) 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.

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(5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.
RESERVATIONS: CONSTITUTIONAL PROVISIONS

The Fundamental Right to Equality guarantees equality before law to all citizens of the
country. It also prohibits discrimination on grounds of religion, race, caste, sex or place of
birth. It also provides equality of opportunity in matters of public employment. However,
attention is drawn to Article 15(4) and Article 15(5) which have been quoted above. Article
15(4) empowers the state to make special provisions for the advancement of any socially and
educationally backward classes of citizens or for the SC and ST.
Article15(5) in addition empowers the state to to make special provisions relating to their
admission to educational institutions including private educational institutions whether aided
or unaided by the state.
Through Article 16(4), reservation is granted for appointment or post in favour of any
backward class of citizens, Article 16(4A) provides for reservation in promotion in favour of
SC and ST and through Article 16(4B) the concept of carry forward of vacancies of OBC, SC
and ST is enshrined.
The above Articlesallow the state to protect the interests of the OBC, SC and ST for the
said categories which is the subject matter of my research.

The other related articles are:

Article 46. Promotion of educational and economic interests of SC, ST and other
weaker sections (Directive Principles of State Policy) -
The Article states that, "The State shall promote, with special care, the education and
economic interests of the weaker sections of the people, and, in particular of the Scheduled
Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of
social exploitation."

Article 335. Claims of Scheduled Castes and Scheduled Tribes to services and posts
The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken
into consideration, consistently with the maintenance of efficiency of administration, in the

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

IMPLEMENTATION OF RESERVATION POLICY

The Reservation Policy for SC/ST was started through government instructions in 1982,
while for OBC it was done in 1993. It is to be understood that the Reservation Policy is an
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Affirmative Action which means that it is a deliberate policy of the Government of giving
preferential treatment to some disadvantaged groups in society. Such an action has been taken
to help the historically disadvantaged sections of society.
Affirmative Action is often referred to as Positive and Reverse Discrimination.

RESERVATIONS

As per extant instructions, reservation is provided to Scheduled Castes, Scheduled Tribes and
Other Backward Classes at the rate of 15%, 7.5% and 27%, respectively, in case of direct
recruitment on all-India basis by open competition. In case of direct recruitment on all-India
basis otherwise than by open competition, the percentage fixed is 16.66%, 7.5% and 25.84%,
respectively. In all other matters of reservation, the percentage of 15%, 7.5% and 27% is
followed.
The reservations are mainly done in:
1. Reservation in Legislatures
2. Reservation in services relaxation of age limit and standard of suitability
3. Educational Facilities

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 CENSUS 2011: SC,ST AND OBC

As per the 5Census of 2011 the total population of India was 1,21,01,93,422 approx. 121
crores.
The Scheduled Castes and Scheduled Tribes comprise about 19.7 % and 8.5 %, respectively,
of India's population, while the OBC population is 41.1%.

MANDAL COMMISSION: RESERVATION FOR OBCs

Setting up of Mandal Commission

The plan to set up the commission was taken in 1978 as per the mandate under Article 340
(Appointment of a commission to investigate the conditions of backward classes in India
every 10 years) for the purpose of Articles 15 (Prohibition of Discrimination on grounds of
religion, race, caste, sex, or place of birth) and 16 (Equality of opportunity in public
employment). The commission is popularly known as the Mandal Commission for its
chairman being B.P. Mandal

The Mandal Commission was setup with an aim to "identify the socially or educationally
backward classes" and to consider the question of seat Reservations and quotas for people to
redress caste discrimination. It used eleven social, economic, and educational indicators to
determine backwardness. In 1980, the commission's report agreed to the affirmative action
under Indian law whereby members of Other Backward Classes (OBC), were given exclusive
access to a certain portion of Government Jobs and slots in public universities, and
recommended changes to these quotas, by 27%.

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Report of Registrar General & Census Commissioner CENSUS 2011, Ministry of Home Affairs, Government
of India

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 In order to identify who qualified as an "other backward class," the commission
adopted eleven criteria which could be grouped under three major headings: social,
educational and economic.

These were:

A. Social
1) Castes/classes considered as socially backward by others,
2) Castes/classes which mainly depend on manual labour for their livelihood,
3) Castes/classes where at least 25 per cent females and 10 per cent males above the state
average get married at an age below 17 years in rural areas and at least 10 per cent females
and 5 per cent males do so in urban areas.
4) Castes/classes where participation of females in work is at least 25 per cent above the state
average.

B. Educational
1) Castes/classes where the number of children in the age group of 515 years who never
attended school is at least 25 per cent above the state average.
2) Castes/classes when the rate of student drop-out in the age group of 515 years is at least 25
per cent above the state average
3) Castes/classes amongst whom the proportion of matriculates is at least 25 per cent below the
state average,

C. Economic
1) Castes/classes where the average value of family assets is at least 25 per cent below the state
average,
2) Castes/classes where the number of families living in kuccha houses is at least 25 per cent
above the state average,
3) Castes/classes where the source of drinking water is beyond half a kilometre for more than 50
per cent of the households,
4) Castes/classes where the number of households having taken consumption loans is at least 25
per cent above the state average.

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Major recommendation of Mandal Commission
The Mandal Commission report, recommended 27% reservation for OBC candidates at all
levels of services.
With the implementation of the report, OBC or Other Backward Classes made its way into
the lexicon of Indias social justice movement.

Reaction to Mandal Commission Report

The recommendations of Mandal Commission evoked sharp protests from people all over the
country especially the youth. Subsequently the 27% reservation for OBC was implemented in
1993.

WORKING OF RESERVATION POLICY

An anomalous situation that has been seen in the working of the Reservation Policy is that
even after the reservations the percentage of seats reserved are not filled by the SC, ST and
OBC or even if this is done it is through the principle of carry forward of vacancies. The
situation is especially critical for the OBCs. This has been so stated in a Government of India
notification as reproduced below:

Press Information Bureau. Government of India, Ministry of Personnel, Public

Grievances & Pensions. Dated: 20th July 2016

Article 16(4) of the Constitution enables provision of reservation to Backward Class of

citizens, who are not adequately represented in the State. Reservation is provided to
Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs)
through executive instructions issued from time to time, which has force of law, as held by
the Supreme Court in Indira Sawhney case.
While the representation of Scheduled Castes and Scheduled Tribes is as per the
prescribed percentage, the representation of Other Backward Classes is less than the
prescribed percentage due to the following reasons:

(i) Reservation for Other Backward Classes started only from the year 1993.

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(ii) OBC candidates who are appointed upto 1993, that is before introduction of reservation
for OBCs, are not included for counting their representation;

(iii) There is generally a time gap between occurrence of vacancies and filling up such
vacancies, as recruitment is a time-consuming process.

SAFEGUARDING THE INTERESTS OF SC, ST AND OBC

The Constitution of India has safeguarded the interests of SC, ST and OBC through Article
338, Article 338(A) and Article 339 and Article 340 as detailed below.

Article 338. National Commission for Scheduled Castes

(1) There shall be a Commission for the Scheduled Castes to be known as the National
Commission for the Scheduled Castes.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission
shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions
of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so
appointed shall be such as the President may by rule determine.

(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be
appointed by the President by warrant under his hand and seal.

(4) The Commission shall have the power to regulate its own procedure.

(5) It shall be the duty of the Commission

a. to investigate and monitor all matters relating to the safeguards provided for
the Scheduled Castes under this Constitution or under any other law for the
time being in force or under any order of the Government and to evaluate the
working of such safeguards;
b. to inquire into specific complaints with respect to the deprivation of rights and
safeguards of the Scheduled Castes;

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 c. to participate and advise on the planning process of socioeconomic
development of the Scheduled Castes and to evaluate the progress of their
development under the Union and any State;
d. to present to the President, annually and at such other times as the
Commission may deem fit, reports upon the working of those safeguards;
e. to make in such reports recommendations as to the measures that should be
taken by the Union or any State for the effective implementation of those
safeguards and other measures for the protection, welfare and socioeconomic
development of the Scheduled Castes; and
f. to discharge such other functions in relation to the protection, welfare and
development and advancement of the Scheduled Castes as the President may,
subject to the provisions of any law made by Parliament, by rule specify.

(6) The President shall cause all such reports to be laid before each House of Parliament
along with a memorandum explaining the action taken or proposed to be taken on the
recommendations relating to the Union and the reasons for the non-acceptance, if any, of any
of such recommendations.

(7) Where any such report, or any part thereof, relates to any matter with which any State
Government is concerned, a copy of such report shall be forwarded to the Governor of the
State who shall cause it to be laid before the Legislature of the State along with a
memorandum explaining the action taken or proposed to be taken on the recommendations
relating to the State and the reasons for the non-acceptance, if any, of any of such
recommendations.

(8) The Commission shall, while investigating any matter referred to in sub-clause

a. or inquiring into any complaint referred to in sub-clause

b. of clause (5), have all the powers of a civil court trying a suit and in particular
in respect of the following matters, namely : (a) summoning and enforcing
the attendance of any person from any part of India and examining him on
oath; (b) requiring the discovery and production of any document; (c)
receiving evidence on affidavits;
c. requisitioning any public record or copy thereof from any court or office;
d. issuing commissions for the examination of witnesses and documents;
e. any other matter which the President may, by rule, determine.

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(9) The Union and every State Government shall consult the Commission on all major policy
matters affecting Scheduled Castes.

(10) In this article, references to the Scheduled Castes shall be construed as including
references to such other backward classes as the President may, on receipt of the report of a
Commission appointed under clause (1) of article 340, by order specify and also to the
Anglo-Indian community.

Article 338A. National Commission for Scheduled Tribes

(1) There shall be a Commission for the Scheduled Tribes to be known as the National
Commission for the Scheduled Tribes.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission
shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions
of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so
appointed shall be such as the President may by rule determine.

(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be
appointed by the President by warrant under his hand and seal.

(4) The Commission shall have the power to regulate its own procedure.

(5) It shall be the duty of the Commission

a. to investigate and monitor all matters relating to the safeguards provided for
the Scheduled Tribes under this Constitution or under any other law for the
time being in force or under any order of the Government and to evaluate the
working of such safeguards;
b. to inquire into specific complaints with respect to the deprivation of rights and
safeguards of the Scheduled Tribes;
c. to participate and advise on the planning process of socioeconomic
development of the Scheduled Tribes and to evaluate the progress of their
development under the Union and any State;
d. to present to the President, annually and at such other times as the
Commission may deem fit, reports upon the working of those safeguards;

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 e. to make in such reports recommendation as to the measures that should be
taken by the Union or any State for the effective implementation of those
safeguards and other measures for the protection, welfare and socio-economic
development of the Scheduled Tribes; and
f. to discharge such other functions in relation to the protection, welfare and
development and advancement of the Scheduled Tribes as the President may,
subject to the provisions of any law made by Parliament, by rule specify.

(6) The President shall cause all such reports to be laid before each House of Parliament
along with a memorandum explaining the action taken or proposed to be taken on the
recommendations relating to the Union and the reasons for the non-acceptance, if any, of any
such recommendations.

(7) Where any such report, or any part thereof, relates to any matter with which any State
Government is concerned, a copy of such report shall be forwarded to the Governor of the
State who shall cause it to be laid before the Legislature of the State along with a
memorandum explaining the action taken or proposed to be taken on the recommendations
relating to the State and the reasons for the non-acceptance, if any, of any of such
recommendations.

(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or
inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of
a civil court trying a suit and in particular in respect of the following matters, namely:

a. Summoning and enforcing the attendance of any person from any part of India
and examining him on oath;
b. requiring the discovery and production of any document;
c. receiving evidence on affidavits;
d. requisitioning any public record or copy thereof from any court or office;
e. issuing commissions for the examination of witnesses and documents;
f. any other matter which the President may, by rule, determine.

(9) The Union and every State Government shall consult the Commission on all major policy
matters affecting Scheduled Tribes.

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Article 339. Control of the Union over the administration of Scheduled Areas and the
welfare of Scheduled Tribes

(1) The President may at any time and shall, at the expiration of ten years from the
commencement of this Constitution by order appoint a Commission to report on the
administration of the Scheduled Areas and the welfare of the Scheduled Tribes in the States.
The order may define the composition, powers and procedure of the Commission and may
contain such incidental or ancillary provisions as the President may consider necessary or
desirable.

(2) The executive power of the Union shall extend to the giving of directions to a State as to
the drawing up and execution of schemes specified in the direction to be essential for the
welfare of the Scheduled Tribes in the State.

Article 340. Appointment of a Commission to investigate the conditions of backward

classes

(1) The President may by order appoint a Commission consisting of such persons as he thinks
fit to investigate the conditions of socially and educationally backward classes within the
territory of India and the difficulties under which they labour and to make recommendations
as to the steps that should be taken by the Union or any State to remove such difficulties and
to improve their condition and as to the grants that should be made for the purpose by the
Union or any State and the conditions subject to which such grants should be made, and the
order appointing such Commission shall define the procedure to be followed by the
Commission.

(2) A Commission so appointed shall investigate the matters referred to them and present to
the President a report setting out the facts as found by them and making such
recommendations as they think proper.

(3) The President shall cause a copy of the report so presented together with a memorandum
explaining the action taken thereon to be laid before each House of Parliament.

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 IMPORTANT CASE LAWS ON RESERVATION POLICY

Indira Sawhney & Others vs. Union of India [AIR 1993 SC 477 : 1992 Supp (3) SCC
217]

In the said judgement theSupreme Court:

Upheld the Implementation of separate reservation for other backward classes in

central government jobs.

Ordered to exclude Creamy layer of other backward classes from enjoying reservation
facilities.

Ordered to restrict reservations within 50% limit.

Declared separate reservations for economically poor among forward castes as

invalid.

Ashok Kumara Thakur vs. Union of India. (2008) 6 SCC 1

In April 2006, the government decided to reserve nearly 27% of seats for students from the
OBC segment in institutes of higher learning in India. This would have reduced the seats for
the general, unreserved candidate to about 50% (after taking into account other reserved
seats). Theparliament passed a bill (The Central Educational Institutions (Reservation in
Admission) Bill, 2006) to bring out an amendment in the constitution in this regard. Thakur
challenged the validity of the amendments.

The Supreme Court in response to the PIL refused to stay the constitutional amendment and
further decreed that:

The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic
structure" of the Constitution so far as it relates to the state maintained institutions and
aided educational institutions.

"Creamy layer" principle is one of the parameters to identify backward classes.

Therefore, principally, the "Creamy layer" principle cannot be applied to STs and
SCs, as SCs and STs are separate classes by themselves.

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 Preferably there should be a review after ten years to take note of the change of
circumstances.

Principle of exclusion of Creamy layer applicable to OBC's.

So far as determination of backward classes is concerned, a Notification should be

issued by the Union of India. This can be done only after exclusion of the Creamy
layer for which necessary data must be obtained by the Central Government from the
State Governments and Union Territories. There has to be proper identification of
Other Backward Classes (OBCs.).

Held that the determination of SEBCs is done not solely based on caste and hence, the
identification of SEBCs is not violative of Article 15(1) of the Constitution.

S. Vinodkumar vs. Union of India 1996 6 SCC 580

Supreme Court held that relaxation of qualifying marks and standard of evaluation in matters
of reservation in promotion was not permissible.

However, by the Constitution (82nd) Amendment Act a proviso was inserted at the end of
Article 335 as below:

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

M. Nagraj &Others vs. Union of India and Others. AIR 2007 SC 71

In the said case, the 77th Constitutional Amendment (Article16(4A) and 16(4B)) was held to
be constitutional. It was further decreed that:

1. Article 16(4A) and 16(4B) flow from Article 16(4). Those constitutional amendments do
not alter structure of Article 16(4).

2. Backwardness and inadequacy of representation are the controlling/compelling reasons for

the state to provide reservations keeping in mind the overall efficiencies of state
administration.

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4. If any authority thinks that for ensuring adequate representation of backward class or
category, it is necessary to provide for direct recruitment therein, it shall be open to do so.

5. Backlog vacancies to be treated as a distinct group and are excluded from the ceiling limit
of 50%.

6. If a member from reserved category gets selected in general category, his selection will not
be counted against the quota limit provided to his class and reserved category candidates are
entitled to compete for the general category post.

7. The reserved candidates are entitled to compete with the general candidates for promotion
to the general post in their own right. On their selection, they are to be adjusted in the general
post as per the roster and the reserved candidates should be adjusted in the points earmarked
in the roster of the reserved candidates.

8. Each post gets marked for the particular category of candidate to be appointed against it
and any subsequent vacancy has to be filled by that category alone (replacement theory). R K
Sabharwal Vs St of Punjab AIR 1995 SC 1371: (1995) 2 SCC 745. The operation of a roster,
for filling the cadre-strength, by itself ensures that the reservation remains within the 50%
limit.

P.A.Inamdar vs. State of Maharashtra 2005 AIR(SC) 3226

Supreme court ruled that reservations cannot be enforced on Private Unaided educational
institutions.

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 IMPORTANT CONSTITUTIONAL AMENDMENTS RELATING TO
RESERVATIONS:

THE CONSTITUTION (FIRST AMENDMENT) ACT, 19516

It is laid down in Article 46 as a Directive Principle of State Policy that the State
should promote with special care the educational and economic interests of the
weaker sections of the people and protect them from social injustice. In order that any
special provision that the State may make for the educational, economic or social
advancement of any backward class of citizens may not be challenged on the ground
of being discriminatory, article 15(3) was suitably amplified. Hence the right to
equality does not bar the enactment of laws which provide "special consideration" for
weaker sections of society.

THE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT, 19957

The Scheduled Castes and the Scheduled Tribes had been enjoying the facility of
reservation in promotion since 1955. The Supreme Court in its judgment dated 16th
November, 1992 in the case of Indra Sawhney and Others vs. Union of India and
Others, however, observed that reservation of appointments or posts under
article 16(4) of the Constitution is confined to initial appointment and cannot extend
to reservation in the matter of promotion. This ruling of the Supreme Court would
have adversely affected the interests of the Scheduled Castes and
the Scheduled Tribes. Since the representation of the Scheduled Castes and the
Scheduled Tribes in services in the States had not reached the required level, it was
necessary to continue the existing
dispensation of providing reservation in promotion.In view of the commitment of the
Government to protect the interest of the Scheduled Castes and the Scheduled
Tribes, the Government had decided to continue the existing policy of reservation in
promotion for the Scheduled Castes and the Scheduled Tribes. To carry out this, it
was necessary to amend article 16 of the Constitution by inserting a new clause (4A)

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Indiacode.nic.in Legislative Department, Ministry of Law and Justice

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 in thesaid article to provide for reservation in promotion for the Scheduled Castes and
the Scheduled Tribes.
Amendment of article 16-In article 16 of the Constitution, after clause (4), the
following clause shall be inserted, namely: "(4A) Nothing in this article shall prevent
the State from making any provision for reservation in matters of promotion to
any class or classes of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which, in the opinion of the
State, are not adequately represented in the services under the State.".

THE CONSTITUTION (EIGHTY SECOND AMENDMENT) ACT, 20008

The Scheduled Castes and the Scheduled Tribes had been enjoying the facility of
relaxation of qualifying marks and standards of evaluation in matters of reservation in
promotion. The Supreme Court in its judgment dated 1-10-1996 in the case of S.
Vinod Kumar Vs. Union India held that such relaxations in matters of reservation in
promotion were not permissible under article 16(4) of the Constitution in view of the
command contained in article 335 of the Constitution. The Apex Court also held that
the law on the subject of relaxations of qualifying marks and standards of evaluation
in matters of reservation in promotion is one laid down by the nine-judge Constitution
Bench of the Supreme Court in the case of Indira Sawhney and others Vs. Union of
India and others. Para 831 of Indira Sawhney judgment also held such relaxations as
being not permissible under article 16(4) in view of the command contained in article
335 of the Constitution. In order to implement the judgments of the Supreme Court,
such relaxations had to be withdrawn with effect from 22.07.1997.
In view of the adverse effect of the order dated 22.07.1997 on the interests of
Scheduled Castes and Scheduled Tribes, representations had been received by the
Government from several quarters including the Members of Parliament. Considering
the various representations, the Government had reviewed the position and decided to
move for constitutional amendment with a view to restore the relaxations which were
withdrawn vide instructions issued by the Department of Personnel and Training on
22.07.1997.

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Indiacode.nic.in Legislative Department, Ministry of Law and Justice

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 Amendment of article 335: In Article 335 of the Constitution, the following proviso
shall be inserted at the end, namely:"Provided that nothing in this article shall
prevent in making of any provision in favour of the members of the Scheduled Castes
and the Scheduled Tribes for relaxation in qualifying marks in any examination or
lowering the standards of evaluation, for reservation in matters of promotion to any
class or classes of services or posts in connection with the affairs of the Union or of a
State".

THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 20019

The Government servants belonging to the Scheduled Castes and the Scheduled
Tribes had been enjoying the benefit of consequential seniority on their promotion on
the basis of rule of reservation. The judgments of the Supreme Court in the case
of Virpal Singh Chauhan (1995) 6 SCC 684 andAjit Singh No. I AIR 1996 SC 1189,
had adversely affected the interest of the Government servants belonging to the
Scheduled Castes and Scheduled Tribes category in the matter of seniority on
promotion to the next higher grade. This had led to considerable anxiety and
representations had also been received from various quarters including Members of
Parliament to protect the interest of the Government servants belonging to Scheduled
Castes and Scheduled Tribes.
The Government had reviewed the position in the light of views received from
various quarters and in order to protect the interest of the Government servants
belonging to the Scheduled Castes and Scheduled Tribes, it had been decided that this
will require amendment to article 16(4A) of the Constitution to provide for
consequential seniority in the case of promotion by virtue of rule of reservation.
Amendment of article 16-In article 16 of the Constitution, in clause (4A), for the
words "in matters of promotion to any class", the words "in matters of promotion,
with consequential seniority, to any class" shall be substituted.

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THE CONSTITUTION (NINETY-THIRD AMENDMENT) ACT, 200510

Greater access to higher education including professional education to

a larger number of students belonging to the socially and educationally backward
classes of citizens or for the Scheduled Castes and Scheduled Tribes had been a
matter of major concern. Then the number of seats available in aided or State
maintained institutions, particularly in respect of professional education, was limited
in comparison to those in private unaided institutions.
It was laid down in article 46, as a directive principle of State policy, that the State
shall promote with special care the educational and economic interests of the weaker
sections of the people and protect them from social injustice. To promote the
educational advancement of the socially and educationally backward classes of
citizens or of the Scheduled Castes and Scheduled Tribes in matters of admission of
students belonging to these categories in unaided educational institutions, other than
the minority educational institutions amendment of article 15 was necessary.
Amendment of article 15-In article 15 of the Constitution, after clause (4), the
following clause shall be inserted, namely:-Nothing in this article or in sub-clause (g)
of clause (1) of article 19 shall prevent the State from making any special provision,
by law, for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of article 30.".

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 RESERVATIONS: PRESENT SCENARIO

At present, the system of reservations is strongly being implemented in appointments

and promotions in Government/Public sector, both houses of Parliament, State
Legislatures, Government educational institutions, etc. In fact even some private
sectors are also following the Reservation Policy in order to align themselves to the
state social policy.
The Policy of Reservations which has started with intent of uplifting the SC, ST and
OBC communities to the level of the general caste so that as a community they are at
level with others has had, apart from its benefits a very unfortunate political overtone.
In fact, it has become more of a political tool or a weapon, an integral part of what we
term as vote bank politics. It has divided India socially.
More and more groups have started demanding reservations such as Jaat community
in Haryana, Patidars/Patel in Gujarat, Marathas in Maharashtra, Gurjars in Rajasthan,
Kapus in Andhra and Telangana as also the Gorkhas to name a few. The objective of
Reservation becomes pointless when those coming from reserved categories, who are
economically and socially well-off, take advantage of it. Students feel that genuine
candidates from marginalised groups should be encouraged.

It can be said that the Reservation Policy is well entrenched in the social fabric of the
country, duly protected by the Constitution, the various Acts passed in this regard,
directions by the Government, acceptance by the society at large that the reservations
have to be accepted, the strict adherence to the policy in its implementation in the
various institutions/bodies as also the fact that any violation of it is strictly dealt by the
Courts.

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 ADVANTAGES AND DISADVANTAGES OF RESERVATION SYSTEM

Advantages:

1. Increase in number of people from backward sections in decision making i.e.

Increase in representation from different sections of society.
2. It has helped some people from backward sections to
achieve higherposts or services in the government/public sector.
3. It has encouraged the people to fight for the justice whenever there is violation of
their human rights.
4. Meritocracy is meaningless without equality.First of all people must be brought to
the same level whether it elevates a section or decelerates another regardless of
merit. Reservation is a step in this regard.
5. Reservation has slowed down the process of upper castes becoming richer and
backward classes becoming poorer.

Disadvantages:

1. It is a form of ethnic discrimination. It is working as a barrier for inter-caste

interactions.
2. It is the biggest enemy of meritocracy. It is resulting in
the degradationof quality of students, workers and employees etc enrolled in
different institutions.
3. Its propagating notion of caste based society instead of eliminating it.
4. Poor people from forward castes dont have any social or economic advantage over
rich people from backward caste.If this prevails,it may result into the formation of
another backward caste of people belonging from poor people of forward caste.
5. Beneficiaries of reservation are largely from dominant class in backward
castes.Marginalised section still remains marginalised.

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 CONTROVERSY: RESERVATION

The Reservation Policy of the government is a very controversial issue on which broadly,
many opinions are held, maybe rationally maybe emotionally. These can be seen as below:

Reservations are nothing but means to prosper the vote banks of politicians.
They are hindering the countrys growth, development and competency in all aspects
as people with less efficiency and intelligence are occupying positions on account of
reservations while competent people are deprived of these as they have to compete at
a higher percentage.
On one hand the preamble of our constitution states that we are a free, democratic and
sovereign nation and on the other hand Reservation System is chaining all these
aspects. It is creating disparity and differences amongst the people.
The constitution lays down that every child has a right to education and nowhere
expresses that any child belonging to a backward class has a little more of this right
than the general category.
Reservation of one category against another, creates a feeling of division which is
now resulting in a chaos with every small section of the society asking for it.
Reservations on the basis of caste and not on the basis of condition are bad and
unacceptable.
There should be fair and just Reservations to uplift the people with poor conditions of
life, those who dont have meals to eat, clothes to wear and no home to live in. It
should not be only on the basis of a class, caste or tribe.
The reservations should be made on the basis of factors such as gender, as women are
more disadvantaged than men since primitive times, domicile, family education,
family employment, family property, family income and the like.
The process of Reservation should be such that it filters the truly economically
deprived individuals and bring them all to justice.
Thus, Reservations are anti-thesis of development and equality.
We dont need Reservations based on castes but only to actually provide aid to those
who have minimal resources; merit should be given equal importance in admission
procedures as well employment opportunities. This way we would be successful in
removing caste discrimination and unite the economically rich together in helping the
economically poor, irrespective of their castes.

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 ISSUE AT HAND

It is to be seen that a matter which has been engaging attention is whether the reservations are
serving the purpose today, for when the provisions were enshrined in the Constitution at the
time of Indias Independence and thereafter, the position of the reserved categories was
different. They were marginalised, downtrodden, not aware of their rights, poor, not educated
especially as the country was under the British rule and after India gained independence.
However, with the reservations, the standard of the reserved communities has vastly
improved and many of them are at level with other General communities. But they are still
continuing to take the benefits of reservation thereby not only it is considered as a
discrimination towards the General caste categories with whom they are at the same platform,
but also injustice to the other members of the reserved community who are unable to compete
with these better off members of the reserved categories.

The issue then is that whether the Reservation Policy, in its present form should continue or
whether some changes should be introduced in it so that the benefits of the reservation go to
the downtrodden and marginalised members of the reserved communities.

DIMENSIONS OF THE SOLUTION

It has been suggested at various forums that:

The aim of the reservations to bring the SC, ST and OBC at level with the other
General Caste members and this was the intent of the Father of the Constitution, Shri
B.R.Ambedkar, who himself was a Dalit and could understand the position of these
communities even after the passage of nearly 70 years of the working of our
constitution and Indias independence, only a small percentage of the members of the
reserved communities have come on the same platform as members of the General
Caste. Majority of the members of the Reserved communities are still illiterate, un
progressive, not aware of their rights, downtrodden, poor and living in rural areas with
no opportunities of uplifting themselves. Hence, the Reservation Policy in its
present form should continue.
At present, the benefits of OBC reservation are available only to the members of non-
creamy layer which at present is an annual limit of Rs.8 Lakhs. The creamy layer that
is those earning above 8 lakhs are not entitled to reservations, as it is considered that

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 these have enough financial resources to be at par with the General categories.
Similar creamy layer should be introduced in the SC/ST reservations.
The benefits of reservation should be available only to one generation in a reserved
community family. The next generation should not be given the said benefits as the
preceding generation in the family (whether mother or father) was already brought at
par with the other categories through benefits in reservations. Hence the benefits
through reservation to second generation should not be permitted.
Reservations in employment, promotions and colleges should be scrapped.
Reservations should be strictly adhered to at the school level so that the children of
the reserved communities grow up together with the children of the General caste and
are hence able to compete with them in future.
The Reservation Policy should be totally scrapped and the reserved communities
should fend for themselves as even in the general caste there are poor, uneducated and
downtrodden people who are fending for themselves.

SUGGESTION/ CONCLUSION

It is felt that in the present scenario a two-pronged action could be done in the
Reservation Policy of India:

1. Introduction of creamy layer in the SC and ST categories as is presently

applicable to the OBC communities.
2. The benefits of reservation to be given to only one generation in SC, ST and OBC
categories. Whether the benefits had been taken by mother or father.

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31