As my autorickshaw rode down the Nehru Place flyover this morning, I took notice of graffiti on

the left side of the road. It said: “Reservation for Dalit Muslims”, followed by the name of the
Member of Parliament or MP sahab who has demanded it. I could not read the name of the MP
sahab because of the speed of the vehicle, but I will mention his name when I update this post.
He surely deserves to be known!

‘Reservation’, is a word that has swept the nation with peaceful and mostly violent agitations,
either against or for Reservation Policy adopted by the government. People who support this
policy argue that it is important to empower the backward classes and give them equality of
status in education and profession. Those who are against this policy argue that it is a “clear
infringemnet” of the the fundamental right – Right to Equality.

A policy incorporated at the time of independence, for the depressed classes, has become a
political weapon of hungry and greedy politicians, seeking votes of the depressed classes, not
really oppressed anymore. These politicians try to strike the right cord, the weakness of these
poor masses, to later make the depressed classes sing on their tunes.

The success of Kirori Singh Bhainsla’s Gujjar Agitation in Rajasthan in 2008, might have
encouraged many such ‘Bainslas in the making’, preparing to launch agitation for getting their
respective reservation demands fulfilled. What I saw near Nehru Place flyway today, was just a
hint to that. And when this demand comes from an MP, you can imagine where the country is
going.

Have we ever thought how is the 27% reservation in higher education benefiting the monetarily
poor “depressed classes” of rural and urban India! When the youths from poor Scheduled caste,
scheduled tribe and backward classes are unable to get even the basic education, what good will
this reservation in higher education do to them?

My personal experience says that this benefit of reservation is actually enjoyed by well-to-do
students belonging to the depressed classes. These students with poor merit get easy admission
into the “best” colleges and institutes, merely by dint of a Caste Certificate. While on the
contrary, meritorious students fail to get admission or find their names in the list of the
successful candidates of national level eligibility tests. What a mockery of Right to Equality! It is
nothing but inequality in the name of equality.

Is reservation the only way to uplift the status of the depressed classes? Can there be no effort to
provide proper education and employment avenues for them? Can’t these greedy politicians do
something constructive, thinking away from their narrow political gains?
Women folk listen to a leader during a mass rally at Clock Tower junction, Dimapur. A
legal provision related to the reservation of seats for women in the Parliament and State
Assemblies was introduced during Rajiv Gandhi’s tenure as the Prime Minister of India
when the Panchayati Raj Act, 1992 (73rd and 74th Constitutional Amendment) came into
effect granting not less than 33% reservation for women in the Panchayati Raj Institutions
or local bodies. (Morung File Photo)
 
Introduction
Indian constitution guarantees certain fundamental rights and provisions to its citizens through
which they can live as human being with dignity and meaning of life. Part-III of the Indian
constitution, containing Articles 12 to 35 provide for different kinds of fundamental rights as
mentioned below: 1. Definition of State (Article 12). 2. Laws inconsistent with or in derogation
of the fundamental Rights (Article13). 3. Right to Equality (Articles 14-18). Right to Freedom
(Articles 19-21). 4. Safeguards against Arbitrary Arrest (Article 22). 5. Right against
Exploitation (Articles 23-24). 6. Freedom of Religion (Articles 23-28). 7. Cultural and
Educational Rights (Articles 29-30). 8. Right to Constitutional Remedies. The main purpose of
this paper presentation is to see and examine the importance of the phrase, “Right to Equality” as
categorized under Articles 14-18 of our Indian constitution related to the provisions and
decisions made for affirmative action or reservation for the depressed and marginalized sections
of the people in India.

I. Right to Equality and Its Importance

The constitution of India has laid down certain provisions for the welfare of deprived and
marginalized sections of society with a view to bringing the concept of “Right to Equality” into
fruition having made it access to such sections of society. Some of the Articles and provisions of
Indian constitution relating to the uplift of the underprivileged and down-trodden sections of the
citizens of India are seen in the following: The preamble, Articles 38 and 46 of the Directive
Principles of State Policy, Articles 14, 15, and 16 of the Fundamental Rights and Articles, 330,
331, 332, 333, 335, 338 and 340, 341, 342, and etc.    

I.1. Equality before Law

Article 14- It provides for Equality before law and Equal protection of laws within the territory
of India. Article 14 of the Indian constitution declares 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.’ It means
that law treats equally all individuals without any discrimination right from the top to the bottom.
All persons are treated equally in the equal circumstances.        
The phrase ‘equality before the law is of English origin’ and ‘equal protection of the law’ is
taken from American constitution. Both the phrases appear to be same, but they do not convey
the same meaning. The former has a negative concept towards having and showing of special
privilege in favor of individuals where as the latter has a more positive concept implying equality
of treatment in equal circumstances (Sheoshanker vs. State of M.P. AIR., 1951 Nagpur 53).
However, in (State of West Bengal v. Anwar Ali Sarkar, AIR., 1952), Patanjali Sastri, observed
that “the second expression is corollary of the first and it is difficult to imagine a situation in
which the violation of the equal protection of laws will not be the violation of the equality before
law. Thus, in substance the two expressions mean one and the same thing.”  
I.1.1. Certain Exceptions to the Rule of Law
The above rule of equality is not absolute rule and following are certain exceptions: 1. Equality
before the law does not mean that the powers of the private citizens are the same as the powers
of the public officials. 2. The rule of law does not prevent certain classes of persons being
subject to special rules. Thus, members of the armed forces are controlled by military laws and
so also, medical practitioners are subjected to the regulations framed by medical council of India.
Article 361 of the Indian constitution affords immunity to the President of India and the state
Governors from the institution of criminal proceedings against them resulting into process for the
arrest and imprisonment during their terms of office with their official duties and functions. 3. 
Certain members of society are governed by special rules in their professions, such as lawyers,
doctors, nurses, members of armed forces and police. Such classes of people are treated
differently from ordinary citizens.

 I.1.2. Reasonable Classification

The legislature has a power to exercise its discretion and make classification of the sections of
people for the purpose of giving protection without interference of the court. A guarantee of
equal treatment of persons in equal circumstances permits differentiation in different
circumstances.  It is a fact that the principle of equality does never mean that every law should
have universal application for all persons. A reasonable classification is important free from
arbitrariness and irrationality.
The following are important grounds for having reasonable classification: (i) the classification
should be founded on intelligible differentia which distinguishes those who are grouped together
from the rest, and (ii) differentia should have a rational relation to the object sought to be
achieved. Relevantly and contextually, reasonable classification depends on the object of
legislation, in a sense, one cannot talk exhaustively about the circumstances or criteria, because
our human society is dynamic that always needs a change along with the changing outlook of the
people.

I.2. Prohibition of Discrimination

Article 15 relates to the prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth. The clause (1) of Article 15 mentions the prohibition of discrimination against any
citizens on grounds only of religion, race, caste, sex, place of birth or any of them.  The clause
(2) of Article 15 prevents from making any disability, restriction or condition against any citizen
of India on grounds of religion, race, caste, sex, place of birth or any of them so as to deny in
having access to the shops, public restaurants, hotels and places of public entertainments or
wells, tanks, roads etc., maintained wholly or partly out of state funds or dedicated for the use of
public in general. The clause (3) of Article 15 empowers the state for making special provisions
for the protection and advancement of women and children. The clause (4) of Article 15 enables
the state to make special provisions for the advancement of any socially and educationally
backward classes of citizens or for the scheduled castes and the scheduled tribes.  
Clause (5) of Article 15 states that “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.”
I.3. Equality of Opportunity in matters of Public Employment
Article 16 deals with Equality of Opportunity related to public Employment. Clause (1) of
Article 16 lays down the general rule guaranteeing that there shall be equal opportunity for
citizens in matters related to employment and or appointment to any office under the state. 
Clause (2) of Article 16 provides the grounds basing on which citizens should not be
discriminated against each other with regard to any appointment or office under the state.  The
clause (4) of Article 16 lays down the provisions for the reservation of appointments or posts in
favor of any backward class of citizen, which in the opinion of the state is not adequately
represented in the services under the State. The ruling of the Supreme Court in Indra Sawhney’s
case became detrimental to the interest of the Scheduled Castes and Scheduled Tirbes as it was
confined to the initial appointment only having excluded promotion. The constitution (Seventy
Seventh Amendment) Act, 1995, inserted a new clause (4-A) in Article 16 with a view to making
reservation even in promotion.  A new clause (4-B)  in Article 16 has been added by the
constitution (81st Amendment) Act, 2000 which empowers the State to look into backlog
reserved vacancies due to the non-availability of eligible candidates and carry forward for a
maximum period of three years.  The Carry Forward Rule was upheld as valid by the Supreme
Court so long as the actual reservation in a particular year does not exceed 50% except in certain
extra-ordinary situations.

II. Reservation: A Brief Historical Background

Reservation in Indian legal system goes along with quota system whereby a percentage of seats
are being reserved in the union and state government departments and in all public and private
educational institutions, except in the religious/ linguistic minority educational institutions, for
the socially and educationally backward communities and the Scheduled Cates and Tribes who
in the opinion of the Government are not adequately represented in these services and
institutions. India has a long history about the introduction of reservation which started as early
as 1882 with the appointment of Hunter Commission so as to look into the demand made for free
and compulsory education for all along with proportionate representation in Government Jobs
headed by Mahatma Jyotirao Phule.
The demand for reservations of government jobs was made as early as 1891 with the agitation in
the princely State of Travancore against the recruitment of non-natives into public service in
which qualified native people were intentionally ignored and bypassed. In 1935, Indian National
Congress passed a resolution known as Poona Pact for allocation of separate electoral
constituencies for depressed classes.  In 1942, B.R. Ambedkar established “All India Depressed
Classes Federation” to support for the advancement and improvement of the Scheduled Castes.
B.R. Ambedkar fervently demanded reservations for the Scheduled Castes in government
services and education as well. Kalelkar Commission was established in 1953 with a view to
assessing the living conditions of the socially and educationally backward classes of citizens.
The report was accepted as far as Scheduled Castes and Scheduled Tribes were concerned. The
recommendations for OBC’s were rejected.  
Mandal Commission was established in 1979 with a view to assessing the situations and living
conditions of the socially and educationally suppressed and depressed sections of society. The
commission could not have exact figures for a sub-caste, known as the Other Backward Classes
(OBC), and used the 1930 census data, further classifying 1,257 communities as backward to
estimate the OBC population at 52%. In 1980, the commission submitted a report, and
recommended some changes to the existing quotas, increasing from 22% to 49.5%. As per 2006,
number of castes in backward class list reaches up to 2297 which is the increase of 60% from
community list prepared by Mandal commission.  

III. Decisions of the Court on Reservation

The constitution of India permits the state to adopt an affirmative action or reservation as it
deems necessary to uplift some sections of people who are forced to live by compelling social
structure in degrading and inhuman conditions. In the light of this, Indian Judiciary has
pronounced some Judgments upholding reservations with implementation. Numerous judgments
with regard to reservations are being modified subsequently by Indian parliament through
constitutional amendments. Mentioned below are the major judgments given by Indian Courts:
1. In 1951, the Supreme Court pronounced that making reservation based on caste as per
Communal Award was in violation of Article 15(1) (State of Madras Vs. Smt. Champakam
Dorairanjan AIR 1951 SC 226), but through 1st constitutional amendment, clause (4) of Article
15 was enacted with a view to making this judgment invalid.
2. In (Balaji v. State of Mysore, AIR., 1963, SC., 649), the Supreme Court held and affirmed that
making reservation should not go beyond 50%.
3. In 1992, Supreme court in (Indira Sawhney & Ors v. Union of India. AIR., 1993, SC., 477-
The Mandal Commission Case) has examined the scope and extent of Article 16(4) and the
following are the decisions:
(i) Backward class of citizen in Article 16(4) can be identified on the basis of caste and not only
on economic basis.
(ii) Article 16(4) is not an exception to Article 16(1). Thus, the Court had overruled its previous
decision in (Balaji v. State of Mysore, AIR., 1963 SC., 649) in which it was held that Article
16(4) is an exception to Article 16(1). The Court approved the decision in (State of Kerala v.
N.M.Thomas, AIR., 1976) where it was held that “Article 16(4) is not an exception of Article
16(1), but a facet of the doctrine of equality enshrined in Article 14 and permits classification
just as Article 14 does.”   
(iii) Backward Classes in Article 16(4) are not similar to as socially and educationally backward
in Article 15(4). Thus, the Court overruled the decision taken in Balaji case in which it was held
that “the backward class of citizens in Article 16(4) is the same as the socially and educationally
backward classes, scheduled castes and scheduled tribes mentioned in Article 15(4).”  
(iv) Creamy layer must be excluded from reservation.
(v) Article 16(4) permits classification of backward classes into backward and more backward
classes. Here, sub-classification between backward classes and more backward classes declared
as unconstitutional in Balaji case was overruled.
(vi) A backward class of citizens cannot be identified only and exclusively with reference to
economic basis but also educational backwardness. (vii) Reservation shall not exceed 50%.
(vii) There shall be no reservation in promotions; it is confined to initial appointment only. At
this point, the Court’s decision in (General Manager, Southern Railway v. Rangachari, AIR.,
1962, SC., 36, State of Punjab v. Hiralal, (1970) 3 SCC., 567, Akhil Bharatiya Shoshit
Karamchari Sang v. Union of India (1981) 1 SCC 246) holding that Article 16(4) included
promotions as well was overruled.
4. The Supreme Court delivered a unanimous judgment by 7 judges on August 12, 2005 in the
case of (P.A. Inamdar & Others v. State of Maharashtra, AIR., 2005, SC., 3226) declaring that
the State can’t impose its reservation policy on minority and non-minority unaided private
colleges, including professional colleges.  
5. In 2005, 93rd Constitutional amendment provided a measure for ensuring reservations to other
backward classes and Scheduled Castes and Tribes in Private Educational institutions. This
effectively has reversed the judgment of Supreme Court, pronounced on 12 August 2005.
6. In 2006, the Constitution Bench of the Supreme Court in (M. Nagraj & Others v. Union of
India & Others) upheld the constitutional validity of clauses (4-A) and (4-B) in Art 16 and
proviso to Article 335.
7. There was hold on related to OBC reservation in Central Government Educational Institutions
as per direction of the Supreme Court in 2007. On April, 2008, the Supreme Court of India
upheld the Government’s move for initiating 27% OBC quotas in Government funded
institutions. The Court reiterated its prior stand that Creamy layer should not be included in the
ambit of reservation policy.

IV. Reservation for Women in India

In our present context, women’s liberation Movement can be seen from different perspectives.
Their liberation from every oppressive and exploitative element must be emphasized and
implemented. Women should be liberated politically, economically, socially, religiously and
from various fetters which oppress and degrade them. For this, they should first be legally
empowered which is fairly practical and feasible. Reservation or affirmative action is one of the
vital ways towards their emancipation and empowerment. Such affirmative action is an essential
and integral part of justice.  
    The magnificence of the Indian Constitution lies in the fact that it seeks to ensure amongst all,
justice, liberty, equality and fraternity having encapsulated under various articles of our
constitution.  Articles 14, 15, 16 and etc, are important. Notably, in (Government of A.P. v. P. B.
Vijaykumar (1995) 4 SCC., 520: AIR., 1995 SC., 1648), the Court had provided a fresh
dimension to Article 15(3) having asserted that reservation for women in State employment is
permissible under that provision albeit separate provision in this regard under Article 16.  in this
case, the rules of A.P. Government were as follows: (i) preference for women in jobs that is
better suited for them; (ii) preference for women in jobs for which they are equally suited with
man; and (iii) direct recruitment to posts reserved exclusively for women were upheld.
The Court upheld an order of Orissa Government that reserved 30% quota for women in the
allotment of twenty four hours medical stores as part of self-employment scheme (Gayatri Devi
Pansari v. State of Orissa (2002) 4 SCC., 221: AIR., 2000, SC., 1531).  And also reservation of
50% seats for women teachers in the selection of primary school teachers in U.P. was upheld
(Rakesh Kumar Gupta v. State of U.P. (2005) 5 SCC., 172).
The practical plan of making a legal provision related to the reservation of seats for women in
the Parliament and State Assemblies came into light during Rajeev Gandhi’s tenure as the Prime
Minister of India when the Panchayati Raj Act, 1992 (73rd and 74th Constitutional Amendment)
came into effect granting not less than 33% reservation for women in the Panchayati Raj
Institutions or local bodies. Former Prime Minister H.D. Deve Gowda made the actual promise
for reservation of seats for women in Parliament and State Assemblies in 1996. I.K. Gujral
proposed the present form and shape of the Bill during his term as the Prime Minister of India.
The Bill in its present shape visualizes for reserving 181 seats in the Parliament for the women
India.
In a progressive manner, along with the changing situation in the society in search and demand
of social, economic, political and gender justice, The Union Cabinet of India approved the
Women’s Reservation Bill having aimed at providing 33% quota for women both in Parliament
and State Legislatures in 05/05/2008.  The Bill is still yet to be passed and now it is in the hands
of the present Union Government of India. Notwithstanding opposition from some politicians, it
is one of the major commitments of the present Union Government to uphold the Bill very
positively. Now people are waiting for the passing of that Bill through which effective
democratization can be witnessed as way of actualizing gender justice which in turn can
contribute towards the building of just and participatory society.

V. Evaluation and Conclusion

1. Affirmative action or reservation is very vital so as to eliminate substantive and concrete
social and economic inequality existing in our Indian society. This can be done in terms of
social, political, educational, economic and legal empowerment. Such affirmative action is
nothing but the grooming of ideals enshrined in the preamble of Indian constitution and the
actualizing of concepts contained in Article 14 of Indian constitution. It is directed towards the
establishment of egalitarian society.  
2. Classifying citizens into groups and giving preferential treatment or option to particular class
of people related to their advancement does not in fact, violate the fundamental rights of other
class of people, rather it provides solid safeguards to the fundamental rights of all citizens and
hence any violation and deprivation of such inherent rights could be stopped.
3. Constitutional goal of egalitarian society should be achieved. Pt. Jawarha Lal Nehru’s dream
of making India into casteless and classless society must remind us of the fact that the citizens
should strive towards the realization of such dream in our present context where gross inequality
and injustice do exist feasibly in various ways.
4. Reservation issue for women, if actualized could be one of the important means for their
empowerment and emancipation. This is a very necessary way of doing for women’s liberation
from the oppressive structure of our society. India is well known for having systematically
instituted and constructed patriarchal and hierarchical structure of society. As result, Indian
women have been suffering from male domination, subjugation and oppression. In the midst of
the prevalence of such male domination in almost every area, it becomes quite impossible for
women to have access to power-sharing and decision making unless exceptional provisions are
made and implemented. Hence, reservation for women is very crucial and important.     
5. The Indian constitutional law is a unique document that accepts social pluralism and makes
provisions for safeguarding the interests of various social sections. It is a fact that social,
educational, and economic inequalities have existed from time immemorial in different political
setup and social segments of the Indian society. The SCs, STs, OBC, and women represent the
most depressed social groups who have been suffering though out the ages due to caste
prejudices, economic inequality, sexism, development of wrong attitude and development of
faulty understanding related to work-division and etc. Thus, a practical talk on reservation or
affirmative action should be understood in such context.      

Conclusion
To sum up, social, economic, and political justice as envisaged by the constitution of India imply
a reduction of inequalities. It is distributive or redistributive justice which involves distribution
and sharing of resources, powers, benefits and burdens in society according to needs, worth,
merit, and work. Reservation is an efficient means to achieve an equalitarian society and that this
policy helps in bringing deprived and marginalized sections of the people to a reasonable level of
equality with the rest of the people. The above mentioned  and discussed fundamental rights  and
provisions related to the actualization of affirmative action as contained in our Indian
constitution express  genuine values  of compensatory or protective discrimination for the
leveling of socially, economically, educationally and politically deprived sections of the society
in India. And hence, the goal and mandate of Indian constitution so as to make India into
egalitarian society could be achieved.   

T. Lakiumong Yimchunger, is a student of LL.M. 1st year at the University Institute of

Law, Rani Durgavati University, Jabalpur (M.P.).