Before one gets into the when, what or how of the reservation policies of the
largest democracy in theworld, one must understand the why of the concept.Hindu
society is divided into four varna, or classes, a convention which had its
origins in the Rig Veda,the first and most important set of hymns in Hindu
scripture which dates back to 1500-1000 B.C.
At the top of the hierarchy are the Brahmins, or priests, followed by the
Kshatriyas, or warriors. The Vaisyas, the farmers and artisans, constitute the
third class. At the bottom are the Shudras the classresponsible for serving the
three higher groups. Finally, the Untouchables fall completely outside of this
system. It is for this reason that the untouchables have also been termed avarna
Jati, or caste, is a second factor specifying rank in the Hindu social
hierarchy. Jatis are roughly determined by occupation. Often region-specific,
they are more precise than the sweeping varna system which is common across
India and can be divided further into subcastes and sub-subcastes.
This is also the case among untouchables. Andre Beteille defines caste as:
a small and named group of persons characterized by endogamy, hereditary
membership, and a specific style of life which sometimes includes the pursuit by
tradition of a particular occupation and is usually associated with a more or
less distinct ritual status in a hierarchical system.
The roots of India�s untouchability problem recede beyond history as does the
caste system that gave rise to it. This is different from the American setting
(black and white racial discord), where the population is not divided into a
hierarchy conforming to religious belief, with the lowest sector regarded as
polluted and untouchable
. Nevertheless, there are some parallels with what
happened in the United States. Untouchability inspired many Indians to work for
reform, including leaders of the independence movement like Nehru and Gandhi.
Efforts to help the Dalits began in the 19th century,
first under British colonial administration and, later, from 1947, under India�s
Untouchability, like slavery in America, was prohibited by constitutional
provision. As in the United States, laws, administrative regulations, and
commissions have anchored official efforts.
At the center isa network of government:
, positions set aside by quota in legislative bodies,
in government service, and in schools at all levels. The hope is that the Scheduled Castes
, as Dalits are
officially known, can use such opportunities as springboards for better lives
for themselves and for
integrating themselves more fully into the life of the country. (The situation
of India�s ScheduledTribes (ST) is generally similar to that of the Scheduled
The reservation policy in India is nothing new, as it had existed in our society
from the time of the British rule and the princely states. The motive of having
reservation then was the eagerness to
modernize through the promotion of education and industry and maintaining unity
.Reservation continued in India even after having achieved independence from the
British. But there isan interesting fact that needs to be seen, that is the
inclusion of provisions of reservation in the Constitution of India based on
caste in educational institutions was after the intervention of the Supreme
Court in the case of
State of Madras v. Champakam Dorairajan:
where the court struck down the classification for reservation being based on
caste, race and religion for the purpose of admission to educational
institutions as unconstitutional.
As early as 1858, the government of Bombay Presidency, which included today�s
all schools maintained at the sole cost of Government shall be open to all
classes of its subjects without discrimination.
Although a 1915 press note
revealed that this policy was not being enforced�
In one case, a Mahar boy was not allowed to enter the schoolroom, but was
relegated to the veranda
the Bombay government maintained its position on the issue, and, in 1923,
announced a resolution cutting off aid to educational institutions that refused
admission to members of the Depressed Classes.Other initiatives followed
including the 1943 Bombay Harijan Temple Entry Act and the 1947 Bombay Harijan
(Removal of Civil Disabilities) Act. In the United Provinces, now Uttar Pradesh,
the 1947 United Provinces Removal of Social Disabilities Act was put in force.
In what is now Kerala, the Maharaja of
Travancore announced the Temple Entry Proclamation
in 1936, in what has been
called a pioneer
[effort] in the field of reforms relating to the eradication of untouchability
before in dependence.
None of our Hindu subjects should, by reason
of birth or caste or community, be denied the consolations and solace of the
Hindu faith, the Maharaja declared the removal of all bars on those
denied entry to temples controlled by the Travancore government. Other measures
affecting whatwould become the present state of Kerala included the 1938 Madras
Removal of Civil Disabilities Act andthe 1950 Travancore-Cochin Temple Entry
(Removal of Disabilities) Act.
In March 1947, Britain sent Lord Louis
Mountbatten, war hero and royal relative, to New Delhi as the King-Emperor�s
last Viceroy. His mission was to transfer power to an independent Indian
government. In the end, power was transferred to two successor entities,
Pakistan on August 14, 1947, and India on August 15, 1947. Under the Cabinet
Mission plan the Constituent Assembly was to consist of 389 seats,296 of which
were filled by delegates elected from the directly-administered provinces of
British India and 93 of which were allotted to the princely states.
number of seats was based on an undivided India, and, overall, represented a
cross-section of the population of the country. Given the Muslim League�s
boycott of the Assembly, the impact of partition and subsequent migration, and
the lengthy process of integrating the princely states, the number and
distribution of seats continually fluctuated from the time of the first meeting
on December 9, 1946. With the 1947 partition, many Muslim delegates left for
Pakistan, terminating their membership in the Assembly. As a result, the body
was reorganized. By November 26, 1949, it consisted of 324 seats, divided among
the provinces and the princely states and representative of all major minority
The make-up of the Constituent Assembly reflected the reality of what groups
wield power in India, then and now. An analysis of membership in the most
important advisory committees of the Constituent Assembly found that 6.5 percent
were SCs. Brahmins made up 45.7 percent. Minority and Scheduled Caste delegates
did have some influence during the Assembly proceedings, with several holding
Dr. H.C. Mookherjee, an Indian Christian, was
Vice-President of the Constituent Assembly as well as Chairman of the
Sub-Committee on Minorities. However, by far the most important was Dr.
Ambedkar.From the outset, the Constituent Assembly laid out clearly its
objectives and philosophy for the new
constitution. Several of the framers� main goals, articulated in the
guarantees of equality, basic freedoms of expression, as well as:
safeguards�for minorities,backward and tribal areas, and depressed and other
These principles guided the delegates throughout the constitution making
process. The Assembly set up a special Advisory Committee to tackle minority
rights issues. This committee was further divided into several subcommittees.
The Subcommittee on Minorities focused on representation in legislatures (joint
versus separate electorates and weightings), reservation of seats for minorities
in cabinets, reservation for minorities in the public services, and
administrative machinery to ensure the protection of minority rights. After
extensive research and debate, the Subcommittee on Minorities drafted a report
of its findings for submission to the Advisory Committee. The latter supported
the Subcommittee�s recommendations.
Vallabhbhai Patel (1875-1950), Chairman of the Advisory Committee and the most
powerful member of the governing Congress party after Nehru, submitted the Report
on Minority Rights to Rajendra Prasad,President of the Assembly, and on August
27, 1947, the Assembly convened to discuss the Report. Patel opened the debate
by presenting the Advisory Committee�s main recommendations.
Rejecting separate electorates Congress wanted no repeat of the separate
electorates granted to the Muslims by the British and a weightage
system, the Report endorsed the creation of joint electorates and
proportional representation. Reservations were approved for minorities, as long
as the reservations were in proportion to the population of the targeted groups.
Some minorities, like the Parsis, voluntarily gave up this right. Treatment of
the Scheduled Castes was extensively debated.
Efforts by Ambedkar and his allies
to craft a provision requiring a tripwire
35 percent of Scheduled Caste votes
in a constituency reserved for the Scheduled Castes failed. The principle of
common voting and reserved seats inlegislative bodies throughout the country was
retained despite strong opposition from influential Constituent Assembly members
like Nehru. However, the colonial-era system of having the Scheduled
Castes choose candidates for reserved seats through local electoral colleges
Throughout the debate, caste Hindus permitted nothing that would
suggest splitting off the Scheduled Castes in an electoral sense from the Hindu
With an entire section dedicated to Fundamental Rights
, the Indian
Constitution prohibits any discrimination based on religion, race, caste, sex,
and place of birth (Article 15). This law extends to all public institutions,
such as government-run educational facilities, to access to hotels and
restaurants, public employment and public wells, tanks (manmade ponds for water
supply and bathing), and roads. The practice of untouchability is declared
illegal (Article 17).
Significantly, Article 15, which prohibits discrimination,
also contains a clause allowing the union and state governments to make:
any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
This language was added in 1951 within weeks of a Supreme Court decision
outlawing quotas in school admissions. The speed of the amendment is indicative
of the strong political support for reservations,
Nehru�s personal views not withstanding.
To give teeth to the protections for the Scheduled Castes and Tribes mandated by
India�s Parliament has passed two major laws. The Untouchability (Offenses) Act
of 1955 (renamed the
Protection of Civil Rights Act in 1976) was intended to provide enforcement of
Article 17 of the
Constitution, outlawing untouchability. It fell short of expectations. In the
words of India�s National Commission for Scheduled Castes and Scheduled Tribes, All the measure
s taken were not found to be
effective enough in curbing the incidents of atrocities on Scheduled Castes and
1989 a new law, the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, came into force. Similar to an American hate crimes statute, it
provides heavier penalties than under ordinary law for eighteen specified crimes
including forcing the eating of obnoxious substances, bonded labor, and sexual
exploitation.Thus the basic principles on which reservation was based is
specified in Articles 14, 15(1), 16(1) and16(2).
Article 14 Guaranteed equality to all:
The State shall not deny to any
person equality before the law or the equal protection of the laws within the
territory of India.
That was thefundamental guarantee.
made that guarantee specific in one particular:
The State shall not
discriminate againstany citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.
Guaranteed equal access for everyone to public facilities like wells,
Article 15(3) Contained a proviso provided:
Nothing in this article shall prevent the State
from makingany special provision for women and children.
Notice again: the only
which special provisions were envisaged were women and children. In particular,
notice that no exceptions were envisaged on the basis of castes.
Made the fundamental guarantee of equality. There shall be equality of
opportunity for all citizens in matters relating to employment or appointment to
any office under the State.
did for governmental employed what Article 15(1) did for a citizen�s living in
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.
contained a provison:
Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any backward
5 class of citizens which, in the opinion of the State, is not adequately
represented in the services under the State.
Therefore to sum up what the Constitutional framers provided we may say:
- The fundamental guarantee in every provision was of equality, of non-
- Caste was most consciously eschewed: the proviso to Article 15(1) spoke
only of women and children; Article 16(4) spoke only of any backward class
- Where caste was mentioned, it was only to prohibit discrimination on grounds
- Where �equality� was made specific in Article 16(1) in regard to employment
under the State, forinstance the expression that was used was �equality of
opportunity�, an expression that, has been buried deep under the rhetorical
flourishes of progressives.
The legal history of
reservations in India can be traced back to the cases of:
- State of Madras v. Srimathi Champakam Dorairajan and
- Venkatraman v. State of
In these cases the Indian Supreme Court held that any legislation and/or
executive order prescribing reservations on the basis of caste were
unconstitutional. Soon after the said two decisions the Parliament intervened
and in exercise of its constituent power amended Article 15 by inserting Clause
(4) which states that:
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
It is also profitable to note that the said amendment was brought about by the
very same constituent assembly which drafted the Indian Constitution. Then came
up the issue of the ceiling on reservation which was dealt by the Court in the
M.R. Balaji v. State of Mysore:
Wherein it was held that under no circumstances can the reservation exceed 50%.
Meanwhile, the issue regarding the determination of socially and educationally
backward classes was always of
grave concern. Article 15(4) does not define �backward classes�.
It was said that �caste
� may be a relevant factor, but not the sole criteria
nor the dominant
criteria for determination of backward class. In that case, the order of
reservation was declared bad asit was based solely on caste without regard to
other relevant factors. In Janki Prasad Parimoo v. State of J & K
, it was held that poverty alone cannot be the test of backwardness as large
sections of population in India are backward and thus the whole object of
reservation would be frustrated
Various commissions had held public hearings at various places for determination
of backward classes.
National Commission held 236 public hearing before it
finalized the list. National Commission recommended 297 requests for inclusion
and at the same time rejected 288 requests for the inclusion in the final list.
The Commission had taken into consideration detailed data with regard to
social, educational and economic criteria. It had also looked into whether there
had been any improvement or deterioration in the condition of the caste or
community (mentioned in the final list) during the past 20
Thus Justice Balakrishnan, in his judgment held that identification of
OBC�s was not done solely
based on caste. Other Parameters were followed in identifying the backward
class. Thus Act 5 of 2007 isn't invalid for such purpose. Justice Dalweer
Bhandari, in his dissenting opinion raised various important points. He stated
that the ultimate goal of the Constitution is to have a casteless society and
determining backwardness on the basis of caste would instead give a fresh lease
of life to caste system in India. He propounded that economy should be the sole
criteria for determining backwardness and that any proposed affirmative action
must be time bound.
The authors most respectfully wish to differ from the opinion of Hon�ble Justice Dalveer Bhandari. We
agree with the majority opinion of Justice KG Balakrishnan that caste ought to
be considered as a major criterion for determination of backwardness. Caste
system has been prevalent in India since time immemorial. Every individual
belongs to some caste or the other.
The backwardness of people in Indiacan be
traced to the caste they belonged to. Every caste is associated with a
particular occupation. That relation could not be severed. An example cited was
in the case by learned Counsel Ravi varma Kumar,appearing for the Union of
India, that throughout the country in 6.5 lakh villages, it is the barber
communities and the barber communities alone, which carry on the traditional
occupation of hair cuttings and no other community has taken up the said
Though it may be said that people have deviated from that occupation
and became doctors, engineers, lawyers, etc, but these people forma very small
number. This caste-occupation nexus exists till date in the India. Thus the
whole caste on the basis of the occupation they follow could be called backward.Thus caste as a criterion cannot totally be ignored. As far as people
belonging to these castes, but economically and educationally well off, are
concerned, they would fall within the creamy layer (discussed in the next sub
section) and would thus be denied the benefit of reservation.
Thus no person
would be wrongfully granted the benefits of reservation. As far as the goal of
forming a casteless society is concerned, it is not reasonable to expect to
achieve such goal in the immediate future. Till such time, affirmative action
needs to be adopted for the advancement of castes which are backward. When it is
felt that these castes have become sufficiently advanced, then caste as a
criteria for backwardness can be disposed off. However, we concur with Justice
Bhandari on the view that time limit needs to be propounded for caste-based
The basis for exclusion of the creamy layer is by far one of the the most
important issue before the Supreme Court in Ashok Kumar Thakur v. Union of
. The Hindi version of the Reservation Act which had excluded creamy layer
from the ambit of reservation was rejected by the Parliament and the English
version of the Reservation Act which did not exclude creamy layer from the
benefit of reservation, was accepted.
Thus the intention of the Parliament was
clear that they wanted to include creamy layer for the purpose of reservation.
The term �creamy layer� in simple words means the elite from the lowest caste.
Popular perception is that this term was first coined in Indra Sawhney v. Union
Contrary to popular belief, the said term was first coined by Justice Krishna
Iyer, in State of Kerela v.N.M. Thomas
, wherein he observed that �benefits of
the reservation shall be snatched away by the top creamy layer of the backward
class, thus leaving the weakest among the weak and leaving the fortunate layers
to consume the whole cake�.
This term was cited again by Justice Krishna Iyer in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India
and by Justice Chinnapa Reddy in
K.C. Vasanth Kumar v. State of Karnataka
raising similar concerns. The roots of this concept can however be tracedback to
the case of K.S. Jayashree v. State of Kerela
wherein the people belonging to backward class, but whose family income exceeds
Rs. 10000, were denied the benefit of reservation.
However, in Indra Sawhney v.
Union of India
the Supreme Court dealt with creamy layer
at length. That case
dealt with reservation of backward classes in case of public employment. Justice Jeevan Reddy stated that �creamy layer� can be, and must be excluded from the
purview of reservation. He emphasized that upon a member of a backward class,
reaching an advanced social level or status, would no longer belong to the
backward class and would have to be weeded out.
After excluding the creamy layer
alone, would the class be a compact class and such exclusion would benefit the
truly backward. The Supreme Court had observed that �the backward class under
Art. 16(4) means the class which has no element of creamy layer in it. It is
mandatory under Art. 16(4) that the state must identify the creamy layer in a
backward class and thereafter excluding the creamy layer extend the benefit of
reservation to the �class� which remains after such exclusion.�
In Ashok Kumar Thakur v. State of Bihar
, unreasonable conditions were prescribed
to identify the creamy layer. Unlike in Indra Sawhney case wherein it was stated
that children of any IAS or IPS officer would be denied the benefit of
reservation, in Ashok Kumar Thakur v. State of Bihar
an additional condition was
laid down that the IAS or IPS officer should also be earning a minimum salary of
Rs. 10000per month, which condition was quashed as discriminatory.
Sawhney v. Union of India (II),
also known as the Kerala creamy layer case, the
Kerela Legislature passed an Act declaring that there would be no creamy layer
in the State of Kerela. The Supreme Court in this case further explained the
rationale underlying the rule of exclusion of creamy layer. As the creamy layer
is not entitled to the benefits of reservation, non-exclusion thereof would be
discriminatory and violative of Articles 14 and 16. Thus the Act was declared
The above cases were with respect to the exclusion of creamy layer from
reservation in public employment. The issue of exclusion of creamy layer from
reservation in educational institutions was dealt with in Ashok Kumar Thakur v.
Union of India.
The main contention raised by counsels appearing for the
Respondents regarding inclusion of creamy layer for the purposes of reservation
centered on the idea that the objective of reservation under Article 15 and
Article 16 is different.
The contention was that reservation under Article 15 is
not a poverty alleviation programme nor is it a programme to eradicate
unemployment and nor is it a programme to educate all the backward classes. It
is to bring about equality among different castes. Therefore it was contended
that if the lower castes are deprived of the facilities and opportunities in the
name of the creamy layer, then it will be counter productive and would frustrate
the very object of reservation, namely to achieve equality in status, facilities
Chief Justice K.G. Balakrishnan, addressing the aforesaid
contention said that the people belonging to the backward caste, but being
economically advanced do not require the protection of reservation. He stated
the creamy layer principle is introduced merely to exclude a section of a
particular caste onthe ground that they are economically advanced and
educationally forward and unless they are excluded, there cannot be proper
identification of backward class.
If creamy layer is not excluded, then that would mean that identification of
OBCs would be solely on basis of caste and thus violative of Article 15(1) and
16(1). Moreover reservation of OBCs under Article 15 is designed to provide
opportunities in education thereby raising educational, social and economic
levels of those who are lagging behind.
By excluding those who have already attained economic well being or educational
advancement, the special benefits provided under these clauses cannot be further
extended to them and if done so, it would be unreasonable, discriminatory or
arbitrary, resulting in reverse discrimination. Thus, if the creamy layer is not
excluded, the identification of OBC will not be complete such non-exclusion of�
creamy layer' may not be in accordance with Article 15(1) of the Constitution.
The word social
under Article 15(4) and 15(5) is much wider and also includes
�economically. Former Prime Minister of Indian Mr. Jawaharlal Nehru said that:
was included in the social
portion of social and educationally
. Only �social and educationally backward� was added under Article 15
to maintain symmetry with Article 340 also. Had it not been for a desire to
achieve symmetry in
drafting, �economically� would have been included. Had this been done, the
creamy layer would have been excluded ab initio.
Thus the objective of the founding fathers is very clear that they intended to
exclude creamy layer from the benefits of reservation.
The persons included in the creamy layer are already advanced and can be
compared to the so called forward section of the society. They can be treated as
equals with the forward section of the society. Thus the contention that
exclusion of creamy layer would not bring about equality as those people would
remain backward, is not well founded. Instead inclusion of creamy layer would
mean unequal persons being treated as equal thus being violative of Article 14,
15 and 16.
Another important issue with regard to the creamy layer controversy is whether
the restrictions imposed on the creamy layer would apply in case of Schedule
Caste and Schedule Tribes also.
The Supreme Court held that �creamy layer� is a parameter to identify backward
class. Therefore this principle cannot apply to SCs and STs as they are separate
classes by themselves.
The author most respectfully differs from the said view of the hon�ble Court.
The Court seems to have assumed that there is no creamy layer from amongst the
persons belonging to SCs and STs. The whole purpose of reservation is to see to
it that backward classes advance forward. For over 58 years, reservations have
been given to SCs and STs and it would be expected that certain sections of SCs
and STs would have advanced or will advance forward (socially and economically).
The same logic and the same rationale as it applies to OBCs, should also apply
to SCs and STs with respect to exclusion of creamy layer.
It was observed in M. Nagraj v. Union of India
, that creamy layer from SCs and
STs also needs to be excluded.
The Supreme Court seems to have overlooked the said observation.
As discussed the government has kept various welfare schemes for the SC and ST
in India. If we take few examples than reservations in educational systems, land
allotments for residents (free of cost),agricultural land allotted free of cost
for farming etc.I believe that there should be reservation in the educational
system of India. Due to which they can also get good and higher education, but
at the time of the jobs/ public service there should be no reservation. A person
has got almost 22 to 25 years benefit of reservation policy and had completed
Now he should stand on his own feet and should face the competition
in the market. They have got all the things which a person born in other cast
has got by now, provided a sane a socially acceptable environment has been
supplemented by the general (non SC, ST and OBC) society. Judiciary has played
great role in the reservation policy.
In various cases, Supreme Court has given
passing reference to the reservation on the SC & ST in jobs. But Supreme court
has said that reservation should not increase then 50% in any condition but in
most North Eastern state this reservation is increased to 85% and still they
have started a move to increase it to the 95% and court is not taking any steps
against it. By this way we can see that judiciary is also playing a role in
increase of reservation for SC & ST.Now days politicians are playing a major
role in reservation policy.
The reservation policy was only for 10years after
the independence, for the upliftment of SC and ST but till now it is continue
and no one has taken any step to amend it or revise it or to change it. The
reason behind this is the population of SC and ST in country.
Nearly 33% voting is done by SC and ST so now if they make any change in the
reservation policy against the SC and ST then they have to suffer a lot for the
same. So they are not taking any steps against the reservation policy. Now if
you consider the theory of John Rawles of justice then he has clearly said that:
Starting line should be / must be the same for all the Persons.
By providing reservation in the educational systems we are giving the same line
to all the persons. He further also said that by providing equality in education
they are providing equal chance to start to all the persons and further there is
no need of reservation in service also.
John Rawles� theory would well settle theoretically but as stated earlier, in a
practical paraphernalia the
setting and mind set of the unreserved part of population must go hand in hand
with the affirmative discrimination policies in making the reserved part of the
population come at an actual and affirmative par.
- J.N. Pandey , The Constitutional Law of India, 46th Ed. Reprint 2009
- Ram Ahuja, Social Problems in India
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