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The Constitutional Validity Of Reservations In Educational Institutions And Public Employment

"Every democratic nation before gaining its independence has gone through a phase of drastic social revolution so as to bring values of equality and fraternity in their society but my India has never gone through such revolution and hence the people of my India shall by means of rights and reservations bring about a social revolution necessary for freedom of this golden bird" [1]- Dr. B.R. Ambedkar in his speech in the constituent assembly session raising a notion in favor of reservation system in India.

The foundation stones of reservation system in India for backward classes in India were first laid by Dr. B.R Ambedkar. He emphasized on the point that the classes of people in India are highly unequal and hence in order to provide a fair opportunity of growth and to minimize the Ginger effect on the society, provisions of reservations should be embodied in the Constitution of India and more specifically under the Part III of the constitution - Fundamental Rights so as to emphasize on its need in a newly independent India. Ambedkar further elaborated on the Ginger effect of the society meaning that the Indian society grows like a ginger i.e. if one of the classes of society is given preference, the other classes automatically get neglected and connected the need of reservation with the Ginger effect.

He further elaborated on the ancient Varna system in India which divided the society on the basis of profession and placed some people on a disadvantageous position. These practices prevailed and continued in India even after Independence and hence the need to provide reservation was felt in order to suffice the growth of the most marginalized sects of the society and bring them in parity with the economic, social and political standards of the privileged class of the society.

However, Ambedkar himself stated that within ten years of Indian independence the need of reservation would fall off and hence reservation system should be eradicated thereafter. This need of check and balance of reservation was reiterated by Hon'ble Justice J.B. Pardiwala while delivering the landmark EWS judgment.

He stated that "Reservation is not an end but a means - a means to secure social and economic justice´┐Ż Reservation should not continue for an indefinite period of time so as to become a vested interest".[2] The views of Hon'ble Justice B.M Trivedi in the abovementioned case is similar to that of Justice J.B. Pardiwala. Her views that:
"Way forward leading to an egalitarian, casteless and classless society" was to prescribe a time limit to reservations in India." [3]also indicates the will of the Apex Court to control the reservation policy in India. These opinions bring the validity and more specifically the constitutional validity of reservation system in India. A larger question of the erosion of meritocracy comes into a play.

A number of cases from State of Madras v/s Champakam Dorairajan (1951) to Indra Sawhney vs Union of India (1992) supra and further to Janhit Abhiyan versus Union of India (2022) including many other landmark judgments have time and again defined , restricted , criticized and decided on the issue of the validity of reservation system in India .

Constitutional Provisions and Landmark Case Laws

  • Article 14:
    Which provides for equality before law to every citizen and equal protection of law allows for 'reasonable classification' as defined by Justice SR Das in the case of Anwar Ali Sarkar vs State of West Bengal (1952) as well as in the case of Dehi Transport Corporation vs DTC Mazdoor Congress. [4]The apex court defined that in order to suffice the cause of equality , the state is allowed to undertake reasonable differentia meaning that the state can differentiate among classes of society on the basis of certain reasonable normative principles and then create special provisions for the marginalized classes so as to provide for 'equality through the principle of equity and fair opportunity.'[5]
     
  • Article 15(3):
    Clarifies that Article 15 which prohibits discrimination by state on the basis of race , caste , religion, sex , place of residence etc. does not limit the state to make special provisions regarding women and children. The said provision was upheld in the case of Rajesh Kumar Gupta vs State of Uttar Pradesh (2005) [6]which provided for 50% reservation for women candidates in BTC training programme by the government of Uttar Pradesh . The national commission for women was established under the garb of the said provision. It tocuhes the aspect of vulnarability in society.
     
  • Article 15(4):
    Provides that clause (2) of Article 15 or Article 29(2) does not bar the state for making provisions for the welfare of Socially and Educationally Backward Classes (SEBCs) as well as Scheduled Caste and Scheduled Tribes (SC/STs). This provision did not originally exist at the onset of the Constitutuion in 1950 but was later added to the constitutuion by way of the first constitutuional amendment act of 1951 after the landmark judgment of State of Madras vs Champakam Dorairajan (1951)[7] where the Supreme Court allowed reservation of in a state run medical university on the basis of caste. It was held that the perusal of Article 15(4) was to be dealt while keeping in mind the provisions of Article 46 of the Constitution and hence the state was allowed to provide reservation of seats on the basis of caste rather than on merit in the interest of the SC/ST community.

    Article 340 and 341 of the Constitution of India empowers the state to notify and update the list of scheduled caste and scheduled tribes in India from time to time.
     
  • Article 15(5):
    Provides that nothing in article 15 or subclause (g) of clause (1) of article 19 prohibits the State from enacting special legislation to support the advancement of any citizens who are members of socially or educationally underprivileged classes and regarding the admission of the Scheduled Tribes or Scheduled Castes to educational institutions, including private educational institutions, whether or not the State provides funding, except for the minority educational institutions mentioned specifically under clause 1 of Article 30 of the Constitution of India.

    Article 15(5) is the epitome of the reasonable classification discussed under Article 14 as stated in the case of Anwar Ali Sarkar vs State of West Bengal (1952). This provision did not exist in the original doument of the constitutuion but was added by way of the ninety third constitutional amendment of 2005 which was brought in order to override the effect of PA Indamdar vs State of Maharashtra [8]which provided autonomy to minority and private institutions to give admissions to students out of their own choice without being subjected to the reservation policies of the government.

    The follwing constitutional amendment was challanged in the landmark judgment of Ashok Thakur vs Union of India (2008) [9]in which the jurisdiction of Article 15(5) was extended only to government aided and maintained institutions and the concept of 'creamy layer' was applied to backward classes stating that the benefit of reservation should not be granted to the backward class belonging to the creamy layer under Article 15(5).

    However, this was overruled in the landmark judgment of Pramati Educational Trust vs Union of India [10]in which the Apex Court held that the mandate of reservation should be extended to private institutions as well without infringing the right to occupation under Article 19(1)(g) of the Constitution for which the Central Educational Institutions (Reservation in Admissions) Act 2005 was brought and hence Article 15(5) was safeguarded from any alteration.
     
  • Article 15(6):
    The State to create special measures, such as reservations in educational institutions, for the advancement of any citizens who are economically weaker sections (EWS) of the society. It specifies that, with the exception of minority educational institutions covered by Article 30(1), such restrictions may be granted in any type of educational institution, including private, aided, and unaided institutions. It also specifies that 10% will be the maximum number of reservations made using EWS.

    This provision was added to the constitution by way of the one hundred and third constitutional amendment act of 2019. The proviso also provides for the power of the State government to notify the EWS category from time to time. The landmark judgment of Janhit Abhiyan vs Union of India upheld the validity of reservation being provided to the EWS category of persons. It also stated that the cap of 50% reservation as set in the case of Indra Sawhney vs Union of India (2019) [11]was not being breached in case the total reservations cross the maximum bar as the cap itself is flexible in nature. This safeguarded the reservation criteria for the EWS category under Articles 15(6) and 16(6) of the Constitution
     
  • Article 16:
    Article 16 in toto provides for equality of opportunity in matters of public employment. It is in consonance with the idea of reasonable classification as discussed under Article 14 of the Constitution. The basic difference between the provisions of Article 15 and 16 is that where Article majorly provides for reservation in educational institutions, Article 16 broadly covers the areas related to reservation in course of public employment provided, the mentioned exceptions. Thus, if Article 14 is the genus, Article 15 and 16 are the provided species of equity and equality.
     
  • Article 16(4):
    This article enables the legislative authorities in India to make adequate provisions in matters of reservation in appointments and promotions for the benefit of any backward class of citizens that are not properly represented in such state services. The backward class as firstly defined by the report of Kaka Kalelkar Commission report defined backwardness on the basis of caste only. This condition was considered arbitrary as held in the landmark case of Balaji vs State of Mysore[12].

    It was said that caste as a basis of reservation would perpetuate casteism and thus the report was withdrawn within two years and the jurisdiction was again left to the whims and fancies of the state. The state considered caste as a comfortable indicator of providing reservation. This was again challenged in the case of Indra Sawhney vs Union of India famously known as the Mandal Commission case after which caste as a basis of reservation was considered arbitrary and the Mandal Commission 1979 was appointed which recommended 22 points in its report. It was stated that any person who fulfils 11 out of 22 points would be considered backward and the criteria of backwardness shifted from caste to social, economic and educational status. Reservation cap of 50% was strictly based on one year as a unit and thus no carrying forward of reservation was allowed.
     
  • Article 16 (4-A) and (4-B):
    The effects of Indra Sawhney Judgment were diluted by way of insertion of Article 16 (4-A) and (4-B) through the 77th and 81st constitutional amendments of 1995 and 2000 respectively.
     
  • Article 16 (4-A):
    Provided for the power of the parliament to make provisions for promotion including consequentiality in seniority for the Scheduled Caste and Scheduled Tribes. This again defeated the whole exercise of the Indra Sawhney Judgment and provided for reservation on the basis of caste alone so as to fulfil the political motive of the then government. In the case of S. Vinodkumar vs. Union of India [13], the Court ruled that the advancement of general class candidates could not negate the seniority gained by scheduled castes and scheduled tribes by promotion.
     
  • Article 16 (4-B):
    Was added to the Constitution with the intention that the backlog of open positions that could not be filled in a previous year because there were no eligible candidates from the SEBC category would not be combined with the 50% reservation for SCs, STs, and Other Backward Classes on the total number of openings in the following year. A wider interpretation to the concept of Carry Forward rule was added. A case involving Articles 16 (4A) and (4B) of the Constitution was M. Nagaraj v. Union of India.[14]

    In this instance, it was decided that the State needed to gather "quantifiable data" to show how backward Scheduled Castes and Scheduled Tribes are in order to give reservations. It was decided that Scheduled Castes and Scheduled Tribes would likewise be covered by the creamy layer idea and would not be eligible for any reservations of this kind. The Attorney General of India also contended that the two holdings were erroneous because they went against the ruling in Indra Sawhney v. Union of India (non-exclusion of creamy layer in terms of reservations), which led to the modification of the decision.

    In the case of M Nagaraj vs Union of India, the apex court held that reservation under 16 (4-A) of the constitution is not a right meaning that the government is not duty bound to provide reservation but if the government does so, it should be done in consonance with the motive of adequate representation of the backward communities. This landmark judgment also discussed the idea of 'Width and Identity Test' in order to determine the backwardness. It also discussed a triangular relation of Social Justice - Equality - Efficiency while determining the issue of reservation in matters of public employment.
     
  • Article 16(6):
    Was added by way of one hundred and third constitutional amendment of 2019 which provided for reservation in public employment opportunities for the Economically Weaker Section (EWS) which should not exceed ten percent in totality. An executive order can also be passed in regard to extending such reservation. In the landmark judgment of Janhit Abhiyan vs Union of India, the constitutionality of the extra 10% reservation to the EWS category above the 50% reservation ceiling was challenged. It was contended that economic deprivation is temporary in nature and should not be made a permanent basis of extra reservation.
The apex court upheld the extra reservation to EWS reserving its view that the extra reservation was aimed to address a larger socio-economic issue and hence the cap of 50% reservation was not breached as this cap was flexible. This judgment safeguarded the view of the Supreme Court of India in the case of Indra Sawhney vs Union of India supra-2018. Justice Maheshwari in the formerly discussed judgment explained that the SC/ST/OBC was excluded from within the purview of EWS reservation as granting them the benefit of reservation under EWS would extend such person a double benefit and would thus defeat the ends of socio-economic justice.

Conclusion
The Indian reservation policy was implemented with the intention of uplifting specific caste that were subjected to injustices, social and economic marginalization as a result of the caste system's pervasive influence in Hindu society.
In the present period, this justification has somehow lost its meaning, resulting in the castes who ought to benefit from the reservation system not benefiting from it and the others benefiting from it. The reservation system has recently evolved into a strategy used by politicians to build their support bases.

Judge Ravindran correctly observed in one of the seminal rulings in Ashok Kumar Thakur v. Union of India that when more people strive for backwardness rather than forwardness, the nation itself stagnates. Judge Ravindran saw the dangers in the current trend on reservation.

It is very difficult to characterize reservation policies as good or bad because those who gain from them will constantly defend them and call them good, while those who lose out on the system will always demonize them and call them awful. However, the idea and the rationale behind the reservation policy's adoption are more important than whether or not it is a good policy.

The political practice of reserve has simply devolved from being a lofty concept to a vote-buying tactic. Furthermore, the reservations criteria have drawn a lot of criticism. The socially and economically disadvantaged strata are not, in fact, inherently socially or economically disadvantaged; rather, the mere fact that they belong to a caste that is considered backward is sufficient to generate profits under the pretext of reservations.

The reservation strategy is effective as long as it ensures that a worthy candidate does not lose out on an opportunity due to the widespread reservation system. There is, in my opinion, no justification for admitting worthless pupils before worthy ones. If chances for certain groups of people have previously been denied.

It is high time that the reservation policy of India be revisited as Dr. BR Ambedkar, the pioneer of reservation in India said "The day when a tribal woman becomes the President of India, the reservation in India should be abolished". The current political scenario indicates the requirement of such revision of reservation policies in India.

End-Notes:
  1. Constituent Assembly debates (2023) Constitution of India. Available at: https://www.constitutionofindia.net/constitution-assembly-debates
  2. Janhit Abhiyan versus Union of India 2022 SCC OnLine SC 1540.
  3. Ibid
  4. Dehi Transport Corporation vs DTC Mazdoor Congress (1981) 1 SCC 246
  5. Para 63 Anwar Ali Sarkar vs State of West Bengal AIR 1952 CAL 150
  6. Rajesh Kumar Gupta vs State of Uttar Pradesh (2005) 5 SCC 172
  7. State of Madras vs Srimathi Champakam Dorairajanandthe AIR 1951 SC 226
  8. PA Inamdar vs State of Maharashtra (2005) 6 SCC 537
  9. Ashok Kumar Thakur vs Union of India (2008) 6 SCC 1
  10. Pramati Educational and Cultural Trust and Ors. Vs Union of India and Ors. (2014) 8 SCC
  11. Indra Sawhney vs Union of India and Others (2019) 11 SCC 1
  12. M.R. Balaji and others vs State of Mysore AIR 1963 SC 649
  13. S. Vinodkumar vs. Union of India 1996 6 SCC 580
  14. M. Nagaraj and others vs Union of India 2006 (8) SCC 21

Written By: Abhimanyu Singh - Dharmashastra National Law University Jabalpur

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