Principle of Equality
There is equality only among equals. To equate unequal is to perpetuate inequality.
Reservation Policy
The Reservation policy is reserving a certain percentage of seats in education, employment, political, and legislative representation for members of scheduled castes, scheduled tribes, or other groups.
Purpose of the Policy
- To eradicate social, economic, and political disparity in society.
- To uplift unfortunate classes of society to get on equal footing with the rest.
- To ensure that no one is deprived of opportunities.
Social Context
In a country where people with distinguishingly numerous and diverse castes, religions, creeds, genders, and ideologies co-exist, it often leads to conflict and feelings of animosity. The majority suppresses minorities, rendering them helpless.
Treatment of Dalits
The treatment of the Dalits, previously known as ‘Untouchables,’ by the upper class of society is a very dishearteningly appropriate example to understand the gravitas of this concern.
Khairlanji Massacre (2006)
One tragic incident that highlights the suppression of the Dalit community is the Khairlanji Massacre in 2006. In Khairlanji, a village in Maharashtra, the upper caste Kunbi community brutally attacked four members of a Dalit family.
Victims Details
| Name | Relation | Age |
|---|---|---|
| Surekha | Wife of Bhaiyyalal | 44 |
| Roshan | Son | 23 |
| Sudhir | Son | 21 |
| Priyanka | Daughter, Class 12 student | 18 |
Incident Details
- The victims were dragged out and subjected to brutal assault.
- They were paraded naked in the village.
- The women were sexually violated.
- All four were hacked to death.
Aftermath
This incident sparked outrage and protests across India, bringing to light the atrocities faced by Dalits. It highlighted the systematic failures of the government in power and judiciary in protecting the rights of marginalized communities.
Pre-Independence
In India, the concept of reservation has existed since time immemorial. India has always been a land of diversity, with different sections and communities co-existing.
Before the independence when India was under British rule a few reservation provisions were introduced for the benefit of the weaker sections of the society.
Morley-Minto Reforms, 1909
- The Morley-Minto Reforms, in 1909 were intended to please the moderates.
- They introduced separate electorates for different communities, classes, and interests.
- One seat in the viceroy’s council was reserved for an Indian member.
- For the first time Indians were included in the highest levels of government where policies were discussed and framed.
Communal Award, 1932
The Communal Award was announced by Ramsay MacDonald, also famously known as the MacDonald Award on 16th August 1932.
| Beneficiaries | Details |
|---|---|
| Muslims, Sikhs, Anglo-Indians, Christians, Europeans, Depressed Classes | Separate electorates were ensured for these minorities. |
- Ramsay MacDonald had good intentions behind the introduction of the award.
- It was met with criticism as many Hindus believed it aimed at creating social divides in India.
- Gandhi viewed it as a step towards the degeneration of Hindu society.
- Dr. B.R Ambedkar welcomed the award in good spirit as it offered separate electorates for the depressed classes.
Poona Pact, 1932
The Poona Pact 1932 was an agreement between Dr. B.R Ambedkar and M.K Gandhi concerning the political representation of the Depressed Classes.
- Due to conflicting views on the Communal Award, M.K Gandhi threatened to fast unto death unless the provision of separate electorates was removed.
- Dr. B.R Ambedkar did not budge from his stand initially.
- Eventually, both leaders entered into an agreement – the Poona Pact 1932.
| Provision | Details |
|---|---|
| Electorates | Discarded separate electorates, introduced joint electorates. |
| Reserved Seats | 148 reserved seats for the Depressed Classes. |
Post-Independence
After India gained independence the first order of business was to draft a constitution. After being oppressed for centuries by people who did not have one ounce of empathy or pure intentions towards the people of India it was important to draft a constitution that caters to the needs of all without fail.
Constituent Assembly
- The Constituent Assembly was established on December 9, 1946.
- Initially comprised 389 members elected by provincial assemblies.
- Strength decreased to 299 due to partition.
- Representatives came from various provinces and princely states.
- Majority were from the Indian National Congress.
On 13 December 1946, the Constituent Assembly formally commenced its task of framing the Constitution of India.
Reservation Policy Debates
- Various debates took place during the constitution drafting process.
- Every member of the assembly put forward their opinions to ensure inclusivity.
- The most debated topic was The Reservation Policy.
- Arguments both in favor and against were presented to reach an amicable solution.
Parliamentary Debates on Reservation
Numerous debates took place on the floor of parliament specifically on Article 10 sub-clause 3 of the constitution and various amendments were suggested. The clause (3) was concerned with the reservation of ‘backward classes’. Some were blatantly against the provision, some had conflicting thoughts about the term ‘backward classes’ not being defined whereas some had an issue with the duration for which it is being implemented.
Arguments Against
Shri Lokanath Misra (Orissa: General)
- “Clause (3) which refers to the reservation of appointments to backward classes is really unnecessary because it puts a premium on backwardness and inefficiency.”
- “Everybody has a right to employment, food, clothing, shelter, and all those things, but it is not a fundamental right for any citizen to claim a portion of State employment, which ought to go by merit alone.”
- “If we accept that as one, it may be generous but this generosity will itself be a degradation to those people who are favoured with it.”
Shri Damodar Swarup Seth (United Provinces: General)
“Sir, I beg to move: That clause (3) of article 10 be deleted.”
- “Reservation of posts or appointments in services for the backward classes means the very negation of efficiency and good Government.”
- “It is not easy to define precisely the term ‘backward’; nor is it easy to find a suitable criterion for testing the backwardness of a community or class.”
- “If this clause is accepted, it will give rise to castism and favoritism which should have nothing to do in a secular State.”
Pandit Hirday Nath Kunzru
- Proposed substitution: “Shall, during a period of ten years after the commencement of this Constitution, prevent the State from making any reservation.”
- “The word ‘backward’ is not defined anywhere in the Constitution.”
- “While granting protection to communities left behind, is it desirable that provisions operate indefinitely?”
- “Will it not be a temptation for sections of communities to claim backwardness to get protection?”
Arguments In Favor
Shri T. Channiah
“I want this reservation for 150 years which has been the period during which opportunities have been denied to them.”
Shri R. M. Nalavade (Bombay: General)
- “Even though the depressed classes are educated and qualified, they are not given chances of employment under the Provincial Governments.”
- “Now that we have provided for this in the Constitution itself, there is no fear for the Scheduled Castes.”
- “We can be adequately represented in provincial as well as Central services.”
Dr. Dharam Prakash (United Provinces: General)
- “It is not proper to make reservations for Hindus, Muslims, Christians, and Sikhs on minority grounds.”
- “Harijans are really backward, so reservation appears appropriate for some time.”
- “When they reach the same level of culture as others, I would oppose reservation.”
Shri Chandrika Ram (Bihar: General)
- “Several amendments have been moved to insert the words ‘Scheduled Castes’ after ‘Backward classes’.”
- “Backward Class has only two seats out of 152 in the Assembly and 30 in the Council.”
- “Political rights are essential for progress and high position in society.”
Shri P. Kakkan (Madras: General)
- “Poor Harijan candidates hitherto did not get proper appointments in Government services.”
- “Even in promotions, we did not get justice.”
Shri H. J. Khandekar
“The scheduled caste people though well qualified do not get opportunity and fair treatment in services.”
Shri K. M. Munshi
- “Article 301 makes it clear that there will be a Commission appointed for investigating backward classes.”
- “Backward classes include Scheduled Castes, Scheduled Tribes, and others who are economically, educationally, and socially backward.”
The Honourable Dr. B. R. Ambedkar
| Point | Observation |
|---|---|
| Equality of Opportunity | “Every individual qualified for a post should be free to apply, sit for exams, and be tested.” |
| No Reservations View | “Some members insist that equality means no reservations at all.” |
| Balanced Approach | “We must safeguard equality while satisfying communities without representation.” |
| Use of ‘Backward’ | “Unless you use ‘backward’, the exception made in favor of reservation will eat up the rule.” |
Conclusion of Debates
The debates concluded in a compromise that preserved the principle of equality of opportunity while accommodating the needs of the communities that have not had representation in the State. Lastly, Article 10 and its sub-clauses were adopted, reflecting the consensus on the importance of both the principles highlighted by The Honourable Dr. B. R. Ambedkar.
The Constitution of India was adopted on November 26, 1949, after extensive deliberations and modifications by the Constituent Assembly. But it came into full effect on January 26, 1950, officially transforming India from a dominion into a sovereign republic. This date is celebrated as Republic Day in India every year, signifying the establishment of the Constitution as the supreme and absolute law of the land.
First Amendment Act, 1951
It is laid down in Article 46 as a Directive Principle of State Policy that the state should address and promote the educational and economic interests of the weaker sections and protect them from injustice. In order to make sure that any provision made for the advancement of backward classes of citizens may not be challenged on the grounds of being discriminatory, Article 15 was suitably amplified by adding sub-clause 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.”
Kaka Kalekar Commission, 1953
The First Backward Classes Commission was set up by a presidential order under Article 340 of the Constitution of India on January 29th, 1953 for the purpose of identifying and classifying backward classes in India and it submitted its report on March 30th, 1955.
Criteria for Identifying Backward Classes
- Low social position in the traditional caste hierarchy of Hindu society.
- Lack of general educational advancement among the major sections of a caste or community.
- Inadequate or no representation in Government service.
- Inadequate representation in the field of trade, commerce, and industry.
Commission Findings
| Category | Number of Castes/Communities |
|---|---|
| Total Backward Castes/Communities | 2399 |
| Classified as ‘Most Backward’ | 837 |
Dissenting Views
It is pertinent to note that the Commission could not present a unanimous report. Dr. Anup Singh, Shri Arunangshu De, and Shri P.G Shah were opposed to the view of linking caste with backwardness. They also strongly opposed the reservation of posts based on caste.
Shri Kaka Kalekar, the Chairman, took an equivocal stand on this issue. Though he did not record formal minutes of dissent, in his forwarding letter to the President he opposed the acceptance of caste as the basis of backwardness.
Government Action on Kaka Kalekar Commission Report
On September 3rd, 1956 in compliance with Article 340(3) of the Constitution. In this Memorandum it was observed, “For the purpose of the inquiry specifically contemplated in Article 340 of the Constitution it was necessary to consider whether these other backward sections could be properly classified and the Commission had to find objective tests and criteria by which such classifications were to be made; they had to find indisputable yardsticks by which social and educational backwardness could be measured. The report of the Commission has not been unanimous on this point, in fact, it reveals considerable divergence of opinion.”
The Central Government ultimately decided that no all-India lists of backward classes should be drawn up, nor any reservation be made in the Central Government service for any group of backward classes other than the Scheduled Castes and Scheduled Tribes.
Mandal Commission, 1979
The Mandal Commission also known as the second backward class commission as the first Commission failed to have any significant impact, was set up by the government of Morarji Desai on January 1, 1979, under the chairmanship of Bindheshwari Prasad Mandal.
Objectives
- Ascertain the criteria for defining and advancing the backward classes of India.
- Presented their report in December 1980.
Criteria Adopted
The Mandal Commission adopted eleven criteria categorized under:
- Social
- Educational
- Economic
Findings
| Aspect | Details |
|---|---|
| Backward Population | 52% of the total population excluding SCs and STs |
| Communities | 3,743 different castes and communities |
| Reservation Recommendation | 27% in services and public sector undertakings; 27% in higher education admissions |
Implementation and Reaction
- Report submitted in December 1980 but remained unimplemented for a decade.
- In August 1990, Prime Minister V P Singh announced implementation in government jobs.
- Protests erupted, including acts of self-immolation (notably Delhi University student Rajeev Goswami).
- Resulted in V P Singh’s resignation.
- A writ petition was filed in the Supreme Court against the Mandal Report.
Indra Sawhney & Others v. Union of India, 1992 (Mandal Verdict)
The 9-bench judgment in the Indra Sawhney case, famously known as the Mandal Verdict, is a landmark judgment that profoundly influenced the trajectory of reservation policies in India. This judgment has remained highly significant and pivotal whenever the subject of reservation is discussed.
Key Points of the Judgment
- Upheld 27% reservation for Other Backward Classes (excluding the ‘creamy layer’).
- Introduced the concept of ‘creamy layer’ – socially, economically, and educationally advanced sections.
- Capped reservation at 50%.
- Rule of 50% applies annually, not cumulatively.
- Reservation in promotion declared constitutionally impermissible.
77th Amendment Act, 1995
The Scheduled Castes and Scheduled Tribes have been enjoying the facility of reservation in promotions since 1995.
Indra Sawhney Case, 1992
In its 1992 judgment in the case of Indra Sawhney & Others vs. Union of India, the Supreme Court ruled against the reservation provision in promotions.
Insertion of Article 16(4A)
Since the representation of SCs and STs in the state services did not reach the required level, it was necessary to let the reservation in the promotions continue for SCs and STs.
To carry it out, the Supreme Court amended Article 16 of the Indian Constitution by inserting a new clause:
A.16(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.”
81st Amendment Act, 2000
The 81st Amendment Act deals with the unfilled vacancies reserved for scheduled tribes and scheduled castes, introducing Article 16 (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 percent reservation on total number of vacancies of that year”
85th Amendment Act, 2001
In the 85th Amendment Act, the Supreme Court struck down the catch-up rule that was previously established in the case of Virpal Singh (1995) and Ajit Singh (1996) by amending Article 16 (4A) and introducing the concept of Consequential Seniority.
Catch-Up Rule
- If the senior general candidate was promoted, he would regain his seniority over a junior reserved candidate that was promoted before him due to reservation.
Consequential Seniority
- In the amendment of Article 16, the words “in matters of promotion to any class” in clause 4A were substituted by, “in matters of promotion, with consequential seniority, to any class”.
- This allows the reserved category candidates to maintain seniority over general category peers.
93rd Amendment Act, 2005
Previously, reservations were only offered in government or government-aided institutions.
Unni Krishnan Case, 1993
The court held that 50% of seats should be reserved for special classes. The period from 1993 to 2001 is often referred to as the “dark years” for the private education industry.
TMA Pai Case, 2002
In the TMA Pai vs. State of Karnataka case, the Supreme Court recognized the autonomy of private educational institutions under Article 19(1)(g) of the constitution, allowing institutions to operate without governmental interference. This case turned out to be a magna carta for entrepreneurs in the education industry.
PA Inamdar Judgment, 2005
The judgment was concerned with the extent to which the state can regulate the admissions made by unaided educational institutes, and whether the institutions are free to devise their own admission procedure and fee structure.
| Aspect | Judgment |
|---|---|
| Reservation in unaided private institutions | Held violative of Articles 30 and 19(1)(g) |
| Admission procedure & fee structure | Institutions free to devise, subject to no capitation fee |
Insertion of Article 15(5)
The parliament passed the 93rd Amendment Act in 2005, inserting clause (5) in Article 15 of the Indian Constitution.
Article 15(5) offers state the power to introduce special provisions for the advancement of STs, STs, and OBCs, including the provisions related to admissions in unaided private institutions.
Ashok Thakur Case, 2008
The amendment was challenged in the 2008 Ashok Thakur case, where the Supreme Court upheld Article 15(5), allowing reservation in private educational institutions.
103rd Amendment Act, 2019
On January 9th, 2019, the Parliament of India passed the 103rd Amendment Act, 19 which enabled the state to consider economic factors alone as a parameter for offering reservation in education and employment.
The act amended Articles 15 and 16 of the constitution by inserting Articles 15(6) and 16(6).
Article 15(6): EWS Provisions in Education
- Enables the state to make distinct provisions for the upliftment and advancement of the ‘Economically Weaker Sections’ of society.
- Applies to educational institutes, both aided and unaided.
- Excludes minority educational institutions covered under Article 30(1).
- The upper limit for EWS reservations is 10%.
- This 10% cap is independent of the existing ceilings on reservations.
Article 16(6): EWS Provisions in Employment
- Enables the State to make reservation provisions in employment.
- This reservation is subjected to a 10% ceiling.
- The 10% reservation is in addition to the existing reservations.
| Provision | Scope | Reservation Limit | Applicability |
|---|---|---|---|
| Article 15(6) | Education | 10% | Aided & Unaided Institutions (Excluding Minority Institutions) |
| Article 16(6) | Employment | 10% | Public Employment |
Janhit Abhiyan vs Union of India
On November 7th, 2022, the Supreme Court of India by a 3:2 split, held that the 103rd Amendment and EWS Reservations were constitutionally valid.
State Of Punjab And Others Vs Davinder Singh And Others, 2024xii
In the latest 7-judge bench verdict in the case State of Punjab vs Davinder Singh And Others, the Supreme Court ruled in favor of the sub-classification within the scheduled tribes and scheduled castes for reservations.
Key Findings of the 2024 Judgment
- Until now the rule of exclusion of creamy layer established in the Indra Sawhney case was only restricted to OBCs.
- The 2024 judgment extends the restriction on reservations of creamy layer to the Schedule Castes and Schedule Tribes.
- Allows sub-classification within the STs and SCs.
Bench Composition
The 2024 judgment was delivered by Chief Justice of India DY Chandrachud, Justices BR Gavai, Vikram Nath, Bela Trivedi, Pankaj Mithal, Satish Chandra Sharma, and Manoj Misra, it extends the restriction on reservations of creamy layer to the Schedule Castes and Schedule Tribes, allowing sub classification within the STs and SCs.
Majority and Dissent
- Six judges upheld the sub-classification.
- Justice Trivedi dissented.
Observations by Justice BR Gavai
Justice BR Gavai even drew a comparison between the descendants belonging to the SC/ST category whose ancestors have already enjoyed the benefit of the reservation previously to the person who has not enjoyed the facility of reservation yet.
This highlights how reservation, even after achieving equal footing only perpetuates the disparity.
Conclusion
This Article encompasses the entire journey of India’s reservation policy, it highlights the principle of Reservation as well as the intention behind it. The timeline displays how reservation has impacted society and unfortunate sections of society. Even in the colonial period reservation has aided the neglected subsets of society in achieving fair treatment and representation.
- Poona Pact in 1932 ensured depressed classes of political representation by reservation of seats in joint electorates.
- After independence, policymakers prioritized advancement of weaker sections despite debates.
- Article 46 directs the State to promote educational and economic interests of SCs, STs, and weaker sections.
Role of Commissions
- Commissions were set up to identify society’s ‘Other Backward Classes’.
- The 1st Backward Class Commission did not yield significant results.
- The 2nd Backward Class Commission (Mandal Commission) led to protests.
- After the 1992 Indra Sawhney case, Mandal recommendations were implemented.
Key Features of Indra Sawhney Judgment
| Aspect | Outcome |
|---|---|
| Reservation Cap | 50% limit for OBCs |
| Creamy Layer | Excluded from reservation benefits |
The provision of exclusion creamy layer was a relief for the general class as it emphasizes that the spirit of the Reservation law is intact. After the Indra Sawhney judgment various amendments were implemented, allowing reservation in promotions, and in private educational institutions, and introducing 10% reservation for the Economically Weaker Sections of society.
The latest judgment extends the provision of exclusion of creamy layer in the Scheduled Casted and Scheduled Tribes, allowing sub-classification within SCs and STs.
Reservation Policies Impact
The Reservation Policies impact not only the weaker sections of the society but also the general class.
Fairness and Inequality
It is crucial to keep in mind that helping one group does lead to unfair treatment of the other because that will defeat the very purpose of the law and result in the shift of dominance among classes, repeating the past inequalities.
Role of Lawmakers and Reviewers
Lawmakers and reviewers must stay true to the spirit of our constitution and not let any personal bias overpower their integrity and rationality while performing their duties.
Key Points
- Reservation policies affect both weaker sections and the general class.
- Unfair treatment of one group undermines the purpose of the law.
- Shifts in dominance can repeat past inequalities.
- Lawmakers must uphold constitutional values and avoid personal bias.
Summary Table
| Aspect | Impact |
|---|---|
| Weaker Sections | Receive support through reservation policies |
| General Class | May face unfair treatment if balance is lost |
| Lawmakers | Must remain unbiased and uphold constitutional integrity |
| Society | Risk of repeating past inequalities if policies are misapplied |
References
- https://www.hindustantimes.com/india-news/khairlanji-episode-caste-divide-cemented-by-brutality-from-15-years-ago-101631727662814.html
- https://www.worldwidejournals.com/paripex/recent_issues_pdf/2016/December/mintomorley-reforms-of-1909-in-madras-presidency_December_2016_0851160190_2308302.pdf
- Nugent, H. M. (1979). The communal award: The process of decision‐making. South Asia: Journal of South Asian Studies, 2(1–2), 112–129. https://doi.org/10.1080/00856407908722988
- https://www.constitutionofindia.net/historical-constitution/poona-pact-1932-b-r-ambedkar-and-m-k-gandhi/
- https://main.sci.gov.in/AMB/pdf/cad%2009.12.1948.pdf
- backward classes report.pdf
- Bhattacharya, Amit. Who are the OBCs?
- https://www.researchgate.net/publication/262724077_MANDAL_COMMISSION_PERSISTENCE_OF_CASTE_IDENTITIES_and_RESERVATIONS_IN_INDIA
- https://indiankanoon.org/doc/1363234/
- https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-seventy-seventh-amendment-act-1995
- https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-eighty-first-amendment-act-2000
- https://www.livelaw.in/pdf_upload/union-of-india-v-prahlad-goud-553055.pdf
Written By: Kavya Bansal
Disclaimer: This article was originally written during the author’s internship under the guidance of Advocate Madhup Singhal and is published with due permission.
