Reservation has been the talk of the town in recent times, especially after
the Supreme Court of India recently upheld the validity of the 103rd Amendment.
Regardless, reservation or affirmative action has had its fair share of
criticism in recent times owing to several reasons. At the same time, the
rationale interpreted by the State is that reservation is significantly needed
because of the everyday atrocities persons belonging to backward sections of
society are subjected to.
This article seeks to evaluate both these sides of reservation and its relevance
in contemporary society. The article will also delve deeper into the social
setup and the circumstances under which the judgements relating to reservation
India is a land of various ethnicities and diverse people. While this is a sign
of inclusivity reflecting unity in diversity, the reality is not exactly
picture-perfect. Among Hindus, there is a very regressive caste system being
followed to this date due to which certain communities face discrimination.
There are broadly four varnas/castes among Hindus namely Brahmin, Kshatriya,
Vaishya, and Shudras in descending order of their superiority. There was also
the fifth community of untouchables who were not even considered a part of the
caste system i.e, they were outcastes. They weren't allowed to live in the main
city or maintain any contact with people belonging to other castes.
Initially introduced for ensuring the normal functioning of society, it sowed
the seeds for caste-based discrimination and abuse of power by persons belonging
to higher castes. In every aspect of life such as education, employment, access
to electricity, or even the basic necessities of healthcare and water, the
untouchables or Dalits faced discrimination. This essentially led to a broad
distinction between the advantaged (Brahmins and Kshatriyas) and disadvantaged (Shudras
and Untouchables) sections of society.
Such discrimination is not merely restricted to Hindus. There are other
religions in India as well in which people are impoverished and face
discrimination. For example, the Muslim community in India is still subjected to
discrimination in terms of employment, and education as shown in the Sachar
Committee Report (2006).
During British Rule, this discrimination further increased and efforts were
being made during the mid 19th Century to end this discrimination. Mahatma
Gandhi took a step forward to sensitize the work of cleaning toilets by the
lower caste people and calling Dalits Harijans. Efforts were also being made to
provide them with adequate representation in the Parliament during the British
regime for which certain seats were being reserved for them.
Dr. BR Ambedkar, who was himself a Dalit advocated for their rights and for the
removal of the caste system as this was the primary source of all evils. He
eventually succeeded in obtaining a communal award for the Dalits through the
Poona Pact and this pattern of reservation has been followed till now.
From thereon, the importance of equal opportunities, and equal treatment of all
individuals and religions was recognized and was sought to be imbibed in the
The Constitution of India took into consideration the inequalities and
discrimination among different communities. As a result, certain Fundamental
Rights were introduced in the Constitution which focused on equality in all
aspects. Some of these rights are as follows.
Article 14 focuses on equality of each and every individual in the eyes of law.
In other words, any person whether a poor farmer or a rich bureaucrat will be
equally treated by the law and there shall be no discrimination.
Article 15 prohibits any form of discrimination on the grounds of caste, race,
religion, gender, place of birth, etc. This is also an effort to ensure that no
person belonging to a historically backward varna or caste is subjected to any
Article 16 provides the very important right of equality of opportunity in
matters relating to employment or other related matters. For the purposes of
equality of opportunity, affirmative action can be taken by the state to reserve
certain seats in educational institutions or for Government posts.
For the purposes of this article, people belonging to lower castes or
communities would be classified under Scheduled Castes (SCs), Scheduled Tribes (STs),
or Socially and Educationally Backward Classes (SEBCs).
The Preamble of the Indian Constitution further added the terms Socialist and
Secular (in 1976) to ensure equality among all persons belonging to different
These were all considered to the part of the basic structure of the Indian
Constitution. The basic structure of the constitution can never be abrogated as
given in the case of Keshavananda Bharati v State of Kerala
on, several amendments were brought in for ensuring adequate representation of
people belonging to Scheduled Castes or Scheduled Tribes and at the same time
achieving its balance with a merit-based appointment for different positions.
Mandal Commission Report
The Mandal Commission or the Socially and Educationally Backward Classes
Commission was introduced in 1979 to review and identify the socially and
educationally backward classes of India. It was headed by BP Mandal to determine
those castes which were discriminated against and those communities which
suffered from economic, social, or educational backwardness for redressing their
The main finding of the Mandal Commission was that around 52% of the total
population belonged to Other Backward Classes (OBCs) and hence 27% of all
positions in Central Government jobs or PSUs should be reserved for OBCs. This
would increase the total reservation of seats to 49% for the SCs, STs, and OBCs.
The rest 51% of seats were to be reserved for the general category. This was
formally adopted as a law by the VP Singh Government in 1980 and was made
applicable to all Indian states.
However, it led to widespread protests by the students as many believed it to be
unfair to the students who used to be selected on the basis of merit or those
who belonged to the general strata of society. Reservation restricted the number
of meritorious students and they had to struggle much more to get to those
positions. There are several cases that came up during that time in protest of
the Government's measures.
Indra Sawhney v Union of India (1992)
This was the major case in which a petition had been filed by Indra Sawhney
opposing the Mandal Commission Report. She primarily contended that this was
clearly violative of the Right to Equality guaranteed under Article 14 of the
Indian Constitution and that the bracket for reservation was too lopsided
towards the SCs, STs, and the OBCs.
The Court however in this case clearly stated that the purpose of reservation is
to create a level playing field between the disadvantaged and the privileged
sections of society. It is a way of compensating the lower caste citizens for
all the atrocities they had been subjected to for more than 2 centuries and
ensuring their participation and inclusion in society. As a result, Court
determined a reservation of up to 50% in educational institutions and Government
jobs for people belonging to Scheduled Castes or Scheduled Tribes. It was said
to be a temporary measure that is to be effective till the time problem of
backwardness is addressed.
This ruling of the Supreme Court was included under Article 16(4) of the
Constitution through the 76th Amendment Act of 1994 which stated that not more
than 50% of the seats in educational institutions or Government jobs shall be
reserved for SCs, STs, or OBCs. This was further extended to reservation for SCs
and STs for promotions in Government jobs through the 77th Amendment Act, 1995
under Article 16(4)(A) of the Constitution.
MG Badappanvar v State of Karnataka (2001)
In this particular case, the 85th Amendment Act was challenged which amended
Article 16(4)(A). It changed the words 'in matters of promotion to any class' to
'in matters of promotion, with consequential seniority, to any class.' The Court
in this case held that the roster promotions were solely for the purpose of
gaining representation at various levels of service and were not going to confer
any seniority as such. Articles 16(1) and 16(4)(A) don't provide any Fundamental
Rights as such but provide discretion to the state for considering reservation.
Reservation in the field of promotion is not to be provided necessarily in all
Government positions especially those which require higher level technical
M Nagraj v Union of India (2006)
This case also upheld the validity of the 85th Amendment which provided for
reservation in matters of promotion with consequential seniority. The Court
suggested the 'Replacement Theory' for reservation and excluded the backlog
vacancies from the 50% limit. However, direct recruitment for the purpose of
ensuring adequate representation of any backward class or community shall be
carried out at the discretion of the authority which is indulging in such acts.
This was a landmark case that justified the need and also laid down the process
to be followed under Article 16(4) of the Constitution for ensuring adequate
representation of the depressed classes.
Ashok Kumar Thakur v Union of India (2008)
The Supreme Court in this particular case upheld the 93rd Constitutional
Amendment which had added Article 15(5) to the Indian Constitution.
Additionally, the Court stated that the creamy layer principle doesn't apply to
SCs and STs and is only restricted to OBCs. The creamy layer principle means
that if any member belonging to Other Backward Classes has an income level or
whose parents have an annual income of 8 Lakhs per annum, is to be included
under the General category.
For the SCs and the STs, even if they have financial stability, they can avail
of reservation because they are majorly subjected to social discrimination in
their community. The Court further directed the Government to set reservation
limit at a level that would ensure that quality and meritocracy do not suffer.
The backwardness of different communities must be reviewed every 10 years and
appropriate action must be taken to ensure necessary inclusion.
Through all these judgements the Court clearly reflected its bid to ensure
social inclusion and a level playing field through affirmative action. Three
major categories of disadvantaged sections were identified namely Scheduled
Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) were
recognized. However, these didn't prove to be sufficient and protection was
required to be given to many more communities. As a result, 103rd Constitutional
Amendment was made in Articles 15(6) and 16(6) of the Indian Constitution.
103rd Constitutional Amendment
The 103rd Constitutional Amendment was introduced in 2019 to cover up for the
economic backwardness suffered by persons other than those belonging to SCs and
the STs. It brought about a reservation of 10% for the Economically Weaker
Section (EWS) in society. This was apart from the prevailing 50% bracket of
reservation for SCs, STs, and OBCs. For bringing about this amendment, changes
were brought about under Articles 15(6) and 16(6) of the Constitution. Some of
the salient features of this amendment are as follows:
- Article 15(6) provides reservation for people belonging to economically
weaker sections for admission in educational institutions. However, they
should not fall within the scope of Articles 15(4) and 15(5)
- Article 16(6) mentions reservation of persons belonging to the EWS category in
Government jobs and positions.
- Any person, irrespective of their caste having an income level of less than 8
lakhs per annum or agricultural land of less than 5 acres can avail the benefit
of this scheme. Additionally, if they own a residential plot that has an area of
less than 200 sq yards can also avail its benefit.
- This reservation for EWS is over and above the already existing reservation
bracket of 50% for SCs and STs, thereby increasing the maximum percentage of
reservation in Government posts to 60%.
While this amendment has helped people from the general category with financial
insecurity to obtain benefits like the other backward communities, it has also
brought to light the clear violation of the basic structure of the Constitution.
It has again spurred a debate about meritocracy versus positive discrimination
to which there is absolutely no clear solution in current times.
meritocracy is extremely important as it would eventually improve the nation's
productivity but at the same time, the atrocities and injustices of backward
classes also can't be ignored and require an affirmative action to ensure equal
opportunities for all.
The 103rd Amendment was not easily accepted by all individuals in the country.
While it is aimed at benefitting the economically backward sections of the
community, there have been a lot of protests against it. A large number of
petitions have been filed before the Court since the amendment stating that it
is violative of the basic structure of the Indian Constitution and goes against
the Right to Equality guaranteed under Article 14 of the Constitution.
In the very recent case of Janhit Abhiyan v Union of India (2022), the
Supreme Court in a 3:2 verdict was in favour of 10% reservation for EWS over and
above the 50% reservation bracket for SCs and STs. The primary contentions
raised in this case were violation of the Right to equality of all citizens and
violation of the basic structure of the Constitution. Additionally, the bracket
for reservation had been fixed by the Mandal Commission at 50% and the amendment
was increasing it to 60%. The majority and dissenting opinions of the judges are
Majority Opinion- Justice Dinesh Maheshwari, Bela M Trivedi, and JB Pardiwala
The majority opinion was in the favour of 103rd Amendment and the judges were of
the firm opinion that the basic structure of the Constitution was not being
violated. This amendment is an instrument to ensure the development and the
upliftment of not only the socially and educationally backward classes of the
country but for any other disadvantaged section of the society. It has to act as
a tool for counteracting the inequalities and moving towards the goal of
achieving an egalitarian society.
Further, Justice Maheshwari stated that the 50% ceiling fixed by the Mandal
Commission is not rigid in nature and only applies in the case of reservation
that is envisaged under Articles 15(4), 15(5), and 16(4) of the Constitution. It
doesn't violate the basic structure of the Constitution by providing powers to
the state to make certain special provisions for giving reservation to the
Economically Backward Classes based on economic criteria. There is essentially a
need to adequately balance the aspects of equality of opportunity for all with
meritocracy and the amendment focuses on achieving the same.
Reservation is a means and not an end in itself to secure economic and social
justice for all in the country. The focus should always be on extinguishing the
backwardness and the atrocities that certain backward communities are subjected
to through education and employment opportunities. Discrimination is an inherent
social evil in any society and should be eliminated for which reservation is
Further Justice Trivedi also went on to say that classifying persons on economic
grounds under the EWS category would amount to a reasonable classification under
Article 14 of the Constitution. It fulfills all essentials such as
non-arbitrary, reasonable relation with the object of reservation, and is
exceptional from those left out of this group as the classification is on an
economic basis. Hence it doesn't violate Article 14 or even the basic structure
to become unconstitutional.
At the same time, the judges also stressed upon the fact that reservation should
not be allowed to become a vested interest. There is a constant need to review
the measures relating to reservation and fine-tune them according to the
changing social and economic conditions (in light of the realities of the day).
It should not be there for an indefinite period of time such that it becomes a
Dissenting opinion- Justice UU Lalit, Ravindra S Bhat
The dissenting opinion given by the two judges primarily stressed upon the fact
that reservation for the SCs, STs, and the OBCs was quite sufficient for
ensuring equality of opportunity. More reservation than this percentage is going
to be detrimental towards meritocracy thereby adversely impacting the
productivity of the nation. The tables will turn and the general category would
now be subjected to discrimination and would effectively become a minority in
the social setup. It is rather 'contradictory to the essence of equal
opportunity' and 'strikes at the heart of equality code.'
The purpose of article 16 is to ensure the empowerment of those communities that
have not been provided adequate representation in society. In other words, the
criteria of social discrimination is given much more importance or priority as
compared to the economic criteria.
The economic criteria is mostly restricted in terms of access to public goods as
given under Article 15 of the Constitution. The 10% bracket of reservation for
EWS over and above the already existing 50% reservation is violative of the
basic structure of the Constitution and there is no need for a separate
classification of EWS on the basis of economic criteria.
This judgement has further strengthened the thinking of the Government to
support all the depressed/backward classes of the country. To achieve this, any
action taken with certain precautions will be completely reasonable and
This judgement failed to address certain important questions that are at the
helm of affirmative action.
Firstly, caste-based discrimination is based not only on social grounds but also
significantly on economic grounds. Most of the backward sections of society face
financial distress due to a lack of opportunities or economic support. Yet the
persons belonging to Scheduled Castes or Scheduled Tribes are excluded from
availing benefit under the EWS category.
Secondly, since economic distress is faced majorly by the SCs and the STs, there
is no need to introduce an entirely new category of EWS an undue advantage of
which can be easily taken by the affluent. Further, the end that reservation
aims to achieve doesn't have the same impact on all.
For example, reservation in educational institutions will not have exactly the
same objective in comparison to reservation for Government positions. Hence the
way reservation policy is introduced or implemented for different citizens among
the population should also change.
Positive impact of Reservation
The basic purpose of reservation is to ensure equality of opportunities in
education, Government jobs, etc for all citizens irrespective of their caste,
gender, race, religion, etc. When all individuals will have equal access to
resources, the backward communities would also be able to uplift themselves in
society. This in turn fulfills the very purpose of the Constitution as given
under Articles 15 and 16 of the Constitution.
Level playing field
The true potential of any individual can be judged only when he/she competes
with equals. Reservation brings the SCs and STs to an equal level to the others
in society. As a result, all of them run the race from the same starting point.
This ensures that there is complete fairness and no discrimination towards any
individual or community.
Compensating for past injustices
Certain communities from a very long have been subjected to extreme
discrimination and isolation from society. They were also not allowed to
participate in general society. Reservation is also an attempt to compensate for
all the injustices these communities have faced in the past and to ensure that
they break out of these shackles to start a new journey where they are respected
and treated equally.
Integration into mainstream society
Reservation has brought the disadvantaged sections of society into mainstream
society. They now enjoy adequate representation in Government posts and
educational institutions thereby increasing their participation in the general
functioning of society. They are now no longer treated as outcasts and have
rather become an indispensable part of society.
Increased mobility of labour
Reservation has directly ensured that equal opportunities are given to persons
regardless of their castes. As a result, persons belonging to Scheduled Castes
or Scheduled Tribes who were bound to perform certain specific jobs could now
easily perform any work which they wished. As a result, they are no longer
restricted and can shift from the traditional jobs which were imposed to the
jobs which they want to perform at their own will. This has helped in ensuring
the mobility of labour which has had a positive impact on the Indian Economy.
Improvement in quality of administration
When all citizens will get equal education opportunities, they would form an
extremely educated workforce. If they then enter into administrative service,
they would be able to ensure a much better quality of services for the
customers. An example of the same is railways which have a large number of
employees who belong to Scheduled Castes and Scheduled Tribes. The functioning
has improved a lot over the years in Railways with the employees being able to
adapt to the various technological innovations that have taken place over the
These are the major positive effects of the reservation system that has been
followed in India. However, there's still a long way to go.
Drawbacks of reservation
Detrimental to meritocracy
Reservation to a large extent goes against the principle of providing
opportunities on a merit basis. It provides an edge to certain individuals over
others such that even when people possess the required capabilities, they aren't
able to get the opportunity to reach a higher position or obtain a Government
job. On the other hand, those who didn't have the requisite capabilities might
obtain a Government post through reservation.
Reservation rather than reducing casteism increases it. This is so because the
persons get classified into different categories of SCs or STs which further
creates a caste-based society. By classifying people on basis of their caste,
the Government has retained the caste system instead of removing it which
further has the tendency to strengthen social evils.
Reservation has led to widespread protests from certain sections of society over
the years. These have mostly been persons from the general category who are
higher in population but get lesser representation resulting from the 103rd
Amendment. One of the major protests took place during the time Mandal
Commission Report was implemented by the VP Singh Government for going against
the Fundamental Right to equality.
Used for personal benefits
Certain communities, despite being affluent and dominant in a region, demand
reservation for them. As a result, certain communities which have genuinely been
the victims of discrimination and atrocities are sidelined. In other words,
demands for reservation have been rising from certain sections of society that
haven't suffered as much as the other communities. This has opened the
floodgates to various communities seeking reservation sidelining the others who
have been historically subjected to discrimination.
Discourages other communities
Reservation might create a feeling among other communities that the Government
is being partial to the other community and that their contribution towards the
nation or their merit is not being valued. As a result, they might develop
feelings of hatred towards the other community for absolutely no fault of
theirs. They would eventually become cynical and discouraged to work hard
because of this feeling of efforts being wasted.
Reservation is only a short-term solution to address the issue of backwardness.
In the long run, this could do more bad than good as certain communities might
start feeling highly discriminated against and would protest which might turn
violent. Further, there are a multitude of factors that contribute towards
caste-based discrimination and reservation is not a panacea to cure all of them.
There are certain questions that are yet to be answered to remove all forms of
caste-based discrimination. To answer these, the Central Government and State
Governments need to work with cohesion.
Reservation system in India has its own set of drawbacks as well as advantages.
While it has ensured affirmative action through an adequate representation of
backward communities, it has also spurred widespread protests over the years.
While there is a need to encourage meritocracy and promote a competitive spirit
among citizens, there is also a need to support those who have been secluded
from society and have been subjected to atrocities for a long time.
The 103rd Amendment introduced a new category under which individuals who have
faced financial distress can avail reservation. It has brought with it a new
bunch of surprises and it remains to be seen how the recent judgement is going
to impact reservation system and overall caste-based discrimination in India.
Till then, all of us can hope that its impact is only positive and focused
towards achieving the vision of a welfare state where each and every
individual's efforts are valued and respected.