The Indian Constitution is the ultimate legislation of the country. The
origins of the reservation system may be traced back to India's old
discriminatory Caste System. Because unequal cannot be treated equally, the
Indian Constitution allows for positive discrimination to foster equality. With
the object of making Indian society a democratic and egalitarian society, the
framers of our constitution kept the policy of reservation so that the society
can be joined in the mainstream.
The reservations, therefore, were the exception to the general rule.
Reservations in education and public employment are granted to elevate those
regarded socially, educationally, and economically backward in the state's
perspective when a class of citizens is not properly represented in the services
supplied by the state. Reservation is being offered to the SC/ST/OBC class of
citizens in India, who have been disadvantaged and exploited socially,
educationally, and economically for generations.
The Mandal Commission Report of 1980 was the first to define OBC reservation in
India. Before the founding of the Mandal Commission in India, the state suffered
caste discrimination on social, economic, and political levels. Living
standards, scheduled castes, scheduled tribes, and OBC families were deemed much
poorer than the mainstream population, including Hindu forward castes and other
The Other backward class persons were provided with twenty-seven percent
reservation as recommended by the Mandal commission. There were many protests
throughout the country against this decision, and many writ petitions were filed
in the Supreme Court but they could not affect the reservation provided. In 1992
Supreme court upheld the OBC reservation (with the exception of the creamy layer
) in the Indra Sawhney Vs Union of India case.
The Mandal commission report
The commission was founded in 1979 by then Prime Minister Morarji Desai with the
goal of identifying those who are socially or educationally backward.
Bindheshwari Prasad Mandal Indian Parliamentarian was made the head of the
commission. The commission's principal goal was to establish criteria for
determining the socially and economically backward classes and to suggest
initiatives to be done to progress the socially and educationally backward
classes of individuals who had been identified.
Following that, they were required to submit a report to the president outlining
the facts they discovered and making any suggestions they deemed appropriate .To
gather the requisite data and evidence, the Mandal Commission used a variety of
methodologies and procedures. To determine who qualified as an "other backward
The commission after very thorough research, investigation, and help of experts
from various fields worked out 11 indicators to determine social backwardness.
These indicators are social, educational, and economic. The Mandal Commission
delivered its Report in December 1980, which explained the criteria it utilized
to imply backwardness, and made suggestions based on its observations and
results in OBC, or other backward castes, comprise more than half of the Indian
population and are regarded as socially and educationally backward castes.
The Mandal Commission Report advocated for a 27% quota for OBCs (which included
3743 castes) in educational institutions and other government jobs. The
recommendation was made on the reasoning that the OBC constitute 52% of the
Indian population and they believed that we must recognize that an essential
part of the battle against social backwardness is to be fought in the minds of
the backward people.
In India, Government Services have always been looked upon as a symbol of
prestige and power. By increasing the participation of OBCs in the government
services they can give them an immediate feeling of participation in the
governance of this country. The Supreme Court affirmed a 27% quota for OBCs in
1992 (Indira Sawhney case), subject to the exclusion of the creamy layer.
The report faced a lot of criticism as the reservation was provided on the basis
of caste. B.P Mandal had relied heavily on the 1931 census, i.e., the last
caste-based one conducted by the British government. If the caste is taken into
consideration for finding out socially and economically backward class, the
caste can be made as a basis of reservation but those persons of the caste who
have come up equal to the forward section of the community have to be
The word "creamy layer" was first coined by the Supreme Court in Indra Sawhney
v. Union of India. It was held in this case that while identifying the backward
classes, the socially and economically advanced among them ("the creamy layer ")
should be excluded. The reason given behind this in the case was "Society does
not remain static ". The goal of the unique constitutional provisions is not to
divide a few people and families into the backward classes, but to secure the
overall advancement of the backward classes.
As a result, separating the forward and backward groups is not only lawful but
also constitutionally needed. Individuals belonging to the backward classes
therefore can hardly be classified as a forward class unless they have developed
sufficient abilities themselves to compete with others. However, once they
acquire the necessary skills, they will no longer be backward. It will be a
contradiction in terms to call them backward and others more or most backward.
The Sattanathan committee set the creamy layer threshold in 1971 as parents'
total yearly income from all sources exceeding 100,000 rupees. When the "creamy
layer" ceiling was imposed in 1993, it was one lakh. It was then raised to 2.5
lakh per annum in 2004 and raised to ₹ 4.5 lakh in 2008, Rs 6 lakh in 2013, and
Rs 8 lakh in 2017. Today to qualify as a non-creamy layer candidate the annual
family income of a person should be less than eight lakhs.
The constitution does not allow for reservation protection if any members of the
backward class attain sufficient financial strength to uplift themselves. The
affluent segment of the backward class discriminates against others in the group
who are substantially less wealthy. It must be guaranteed that these individuals
do not "chew up" the advantages intended for the true backward class. The
economic ceiling will be set in order to exclude these people from the advantage
of reservation. As a result, the cream among the backward classes must be
National Commission For Other Backwards Classes
The National Commission for Backward Classes is a legal entity. According to
Article 338B of the Indian Constitution, the 123rd Constitutional Amendment
Bill, 2017, and the 102nd Amendment Act, 2008, it is a constitutional body. The
102nd amendment granted the commission extraordinary authority (NCBC). It
enables the commission to properly investigate the implementation of OBC
reservations in services and education. The NCBC is part of the Ministry of
Social Justice and Empowerment which was established on August 14, 1993. It was
founded in compliance with the provisions of the 1993 National Commission for
Backward Classes Act.
The terms of service and duration of office for the Chairperson,
Vice-Chairperson, and other Members are set by the President. In order to review
the efficiency of the protections created for the socially and educationally
backward classes (SEBC) under the Constitution or any other law, the commission
investigates and oversees all matters relevant to such safeguards.
It takes part in and advises on the socioeconomic development of the socially
and educationally disadvantaged groups, as well as assessing their progress
under the Union and any State. NCBC reports to the President on the
implementation of those safeguards on an annual basis and at such other times as
the Commission deems appropriate. NCBC reports on the operation of those
safeguards to the President on an annual basis and at such other times as the
Commission deems appropriate.
The President presents these reports to each House of Parliament. A copy of any
such report, or any part of it, should be provided to the State Government if it
pertains to any topic with which the State Government is concerned. NCBC must
carry out any additional tasks related to the protection, welfare, development,
and progress of the socially and educationally backward groups that the
President may designate by regulation, subject to the terms of any legislation
established by Parliament. It has powers similar to that of a civil court.
The NCBC Act laid down the remedy for the socially and educationally backward
class citizens. The need for commission was formed to maintain equality and
peace among the citizens of India. Some backward class citizens don't have any
idea about their rights and what benefit they can get because there are some
though backward classes but are with the creamy layer which means they are
advanced educationally and socially because of them the real backward class
citizens are left out. The Act's purpose is to maintain the inclusion and
exclusion of these types of citizens.
In October 2015, NCBC proposed that a person belonging to the Other Backward
Class with a total annual income of parents up to Rs 15 lakh should be
considered as the minimum ceiling for OBC The NCBC also suggested splitting OBCs
into "backward," "more backward," and "very backward" blocs and sharing the 27%
quota among them in accordance to their numbers, so that stronger OBCs do not
have a monopoly on quota advantages.
'Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth'. It enumerates the various circumstances in which this general theory
of equality as laid down in Article 14, is applied in specified circumstances.
According to Art. 15(4), nothing in Article 15 or Article 29(2) prevents the
State from adopting special provisions for the progress of any socially and
educationally backward sections of people, or for the Scheduled Castes and
Scheduled Tribes. At present, under this clause reservations in favour of
socially and educationally backward classes are made in admission into
Equality of opportunity in matters of public employment. Art. 16 provides for
the specific application of the general theory of equality in the specified
circumstance, i.e., in the matters of employment under the State. Nothing in
this Article, according to Art. 16(4), prevents the State from creating any
particular provision for the reservation of appointments or posts in favour of
any backward class of people who, in the view of the State, are not sufficiently
represented in the services under the State.
This article provides for the appointment of a commission to investigate the
other backward classes. This article gives power to the President to have the
authority to form a Commission to study the socioeconomic and educationally
backward groups' situations and the obstacles they confront and to provide
suggestions to overcome such difficulties and improve their conditions.
The Commission's operating procedures should be specified in the Order:
- The Commission should offer a recommendation about the grants that the
government must issue in order to carry out the suggested action.
- The Commission's report should be submitted to the President. The report
should contain a memorandum outlining the steps that the government should
take to ameliorate the situation of the poor. This memorandum should be
presented to each House of Parliament.
Demand For Caste Census Many political parties are pushing for caste census so that they be able to
know the exact number of OBCs in the country. OBC is the largest bloc and
voter bank for politicians. The reasoning given behind this is that the
caste wise data will justify the extension of reservations to various
communities. According to scholars, formal blindness to caste in a
caste-based society results in a denial of the web of caste-based privileges
that continue to give opportunities to those at the top of the caste
They point out that while the very term 'caste' has come to be associated
with 'lower castes', the SCs or the OBCs, the upper castes tend to appear
"casteless". They argue that in order to abolish caste, it is essential to
first abolish caste-derived privileges, and in order to do that, the state
must first map castes and their socio-economic status
privileges/deprivations, which is what a caste census seeks to do.
The 127th Amendment Bill This bill amends the constitution to give power to states and union
territories to prepare their own list of socially and economically backward
classes. Article 338B of the Constitution requires the central and state
governments to consult the NCBC on all key policy issues affecting the
economically and socially disadvantaged groups.
The Bill exempts states and union territories from this requirement for
matters related to the preparation of their list of socially and educationally
backward classes. the amendment was necessary because the Supreme court in its
order on the Martha reservation upheld the 102nd Constitutional Amendment Act,
which said that the president of India in consultation with the governors would
specify the socially and economically backward classes, taking away the power of
the state government. The Bill was welcomed by opposition parties but they
demanded to remove the fifty percent reservation ceiling.
Judgments on OBC reservation
Indra Sawhney vs Union of India
On 16 November 1992, the supreme court's constitutional bench of nine judges
affirmed the government decision by a 6:3 majority in its ruling, believing that
caste was an acceptable measure of backwardness. Thus, the recommendation of
reservations for OBCs in central government services was finally implemented in
1992. The bench-held reservation of seats shall only confine to initial
appointments and not to promotions, and the total reservations shall not exceed
After this judgment Article 16(4A) through the 77th Constitutional Amendment and
16(4b) through the 81st Constitutional Amendment were added. Nothing in this
Article, according to clause 4-A, shall prevent the state from making any
provision for reservation in matters of promotion to any class or classes of
posts in the state service in favour of the Scheduled Castes and Scheduled
Tribes who, in the opinion of the State, are not adequately represented in the
services under the State. Clause 4-B seeks to end the 50% ceiling on the
reservation for SCs/STs and BCs in backlog vacancies that could not be filled up
in the previous years due to the non-availability of eligible candidates.
Martha Reservation Case
The five judges bench on 5, May 2021 struck down Maharashtra's law which
provided 16% reservation to the Maratha community. It was held that the Maratha
community is not socially and educationally backward to be brought under
reservation. Supreme Court found no merit in the Maratha claim of backwardness.
The court was of the opinion that Martha reservation even breaches the 50%
reservation limit and there is no exceptional circumstance in which the
reservation could be provided to the Maratha community. The court also upheld
the constitutional validity 102nd constitutional amendment. The bench also said
that the identification of SEBCs will be done centrally, state governments
retain the power to determine the extent of reservation and make specific
policies in the spirit of "cooperative federalism".
The main goal of providing reservations is still far-fetched, there is a lot of
work left. We are still not able to fully uplift the backward classes. There has
been improvement in the conditions of OBCs but certain castes are still not able
to get the benefits to which they are entitled. The main reason behind this is
the lack of authentic data about the backward classes. We still do not know the
exact number of OBCs in this country, without knowing basic information we
cannot frame required policies for the social welfare of the backward classes.
The first step of the government should be a caste-based census, as then only we
could know the real and exact number of socially and economically backward
classes in the country. We will also be able to know whether the reservation
benefits are reaching the right people or only certain castes are only enjoying
the benefits of reservation.
After identifying such castes or communities which are not able to get the
benefits of reservation, The government can segregate them by creating
sub-groups within the Other Backward Classes and provide them with special
The OBC reservation is always taken as a sensitive issue. The OBCs have the
largest population and the fate of various political parties depends on their
OBC vote bank. The recognition of the creamy layer and its criteria should be
reviewed and the recommendations made by the National Commission Of Backward
Classes should be taken into consideration because the situation now demands a
change in the reservation system.
There is a lot of work left for the upliftment of the SEBC such as:
- Reviewing the 50% reservation criteria
- Enumeration of the different castes in OBC
- Reviewing the creamy layer criteria