Discrimination is not just moral damnation by the ones at disadvantage from the ones in power, but it is a vehicle of perpetuating political, economic, educational and social depression.
Having been historically shunned from institutions of importance like religious places, educational institutions and community stared spaces creates an inherently social, political and scholastic handicap for current and future generations. Lack of access to instruments of upward mobility leads to the birth and continuance of a divide that is discriminatory in nature. The basis of such prejudice is often superficial or social constructs and not actual, some examples of such differences are caste, community, gender, race, religion, sexual orientation, etc.
“Affirmative action” means to take positive steps towards the betterment of disadvantaged sections of society (such as women, minorities, people of colour, etc.) in areas of education, employment, and mainstream media from which they have been historically excluded. There are multiple direct and indirect mechanisms of affirmative action, of which educational and employment reservation is most common in India. Affirmative action is a meaningful way for societies to right their wrongs, however, every different mechanism has its advantages, disadvantages and implementation based issues. In this article, I will examine the legality of reservations in India as well as review developments that have taken place by case laws.
Article 15 & Article 16
Article 14 of the Indian constitution establishes equality under the law and equal protection of the law as a constitutional safeguard, whereas Article 15 & 16 provides a legal foundation for affirmative action by the state. The principle in use here is unequal treatment of unequal to level the field that is life and the opportunities it offers.
Article 15 prohibited the discrimination on only grounds of religion, race, caste, sex or place of birth. Thus, guaranteeing that no citizen should be subject to disability, liability, restriction or condition on the grounds mentioned.
Whereas Article 16 ensures equality of opportunity in matters of public employment. Article 16 is a facet of Article 14, regulates matters of employment by the state.
Legislative Origins of Reservation in India
The first application of educational and occupational reservation for depressed classes was through the constitution of India in 1950. The Drafting Committee of the Indian constitution held various lengthy debates on the subject of the reservation to decide the need, nature and extent of reservation in India. The major advocates of this policy were Dr Ambedkar, Nagappa and Jaipal Singh, who were members of communities considered “depressed classes.”
Duration for the continuance for the policy was decided as 10 years. The members of the committee reserved the right to review the matter after the expiry of the period of 10 years- for renewal or abolishment.
Such renewal would be determined by factors laid down, which are: Lack of substantial progress, Need for greater progress, No change in the situation of the depressed classes.
Reservation for “Other Backward Classes”
After Affirmative action was provided for “depressed classes” by constitutional provisions, the question of upliftment of other backward classes, arose, which although not as politically and socially backward as the ST/SCs, but were still marginalised in society, and were struggling as compared to other castes in fields of education, employment and economic development. To address this problem, to address the issue, the Kalelkar Commission was set up. In 1955, the commission submitted its report which stated that there were 2399 backward groups in India out of which 837 were ‘most backward’ and the major evidence of backwardness cited was caste. However, the Union Government, in its pursuit of ultimately creating a casteless society, rejected its recommendations.
The Mandal Commission, officially known as the Socially and Educationally Backward Classes Commission (SEBC), was set up in 1979. The Commission was chaired by an MP, BP Mandal. The objective of the Mandal Commission was to identify the socially or educationally backward classes of India and to consider reservations as a means to address caste inequality and discrimination.
The commission developed 11 criteria to identify the backward classes who were called “Other Backward Classes” or OBCs. The criteria are classified as social, economic and educational. In 1990, the then Prime Minister V.P Singh announced in the Parliament that the recommendations of the Mandal Commission would be implemented, thus introducing reservations for other backward classes.
Legal Development of Reservations by Landmark Decisions
In M.R Balaji v. State of Mysore (1962), the State issued an order under Article 15(4) of the Constitution declaring all the communities except for the Brahmin community as socially and educationally backward thus, reserving a total of 75 per cent seats in Educational Institutions in favour of SEBCs and SCs/STs.
The issues, in this case, were: If students could be excluded from educational institutions based on the unreasonable reservation of such criteria that violate Art15(4) and whether the state has the authority to give reservation on caste basis as ‘backwards’ and ‘more backward’?
A five-judge bench held that the law made by the state was ultra vires on several counts:
The first, the basis of such reservation was solely caste-based. Reservation based solely on caste with weightage to no other factor is not permissible under Art 15(4). Caste was said to be a relevant factor of backwardness but it cannot operate as a sole and dominant test of backwardness.
Secondly, Article 15(4) does not envisage classification ‘between backward’ and ‘more backward classes’. It was held by the bench that if the technique of classifying communities as backward and more backwards was to operate, 90% of the total population would be Backward by comparison.
Thirdly, the Supreme Court provided a distinction between ‘caste’ and ‘backward class’ as a new basis of ascertaining social and educational backwardness.
Fourthly, in this landmark decision was held that no reservation by the state can exceed 50% of the total seats in education or employment, how much less than 50% would depend upon the relevant prevailing circumstances in each case.
Finally, the court held that the reasonability of reservation under Article 15(4) is of prime importance. No reservation should defeat or nullify the main rule of equality enshrined in Article 15(1)
In the Indra Sawhney v. Union of India Case of 1993, commonly known as the Mandal Commission case, a Nine-Judge Bench of the Supreme Court enumerated the following about reservation in government employment under Article 16(4) of the constitution.
The issues raised were- whether the classification made by the commission is based on economic status or caste? If the backward classes in Article 16(4) are similar as socially and educationally backward classes (SEBC) in Article 15(4) or not? Is Article 16(4) an exception to Article 16(1)? Are reservations applicable to promotions?
In this case, the top court held that- Constitutional bar under Article 16(2) provides that there shall not be any discrimination between the citizens on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them in respect of employment or office under the state applies to Article 16(4) in full measure. As held by the SC, identification of backward class by caste is against the constitution, but identification of a group or collectivity by any criteria other than caste, such as occupation cum social cum educational cum economic criteria ending in caste may not be invalid.
Secondly, it was held that reservation being an extreme form of protective measure or affirmative action should be confined to ‘minority’ seats. Even though the Constitution does not lay down any specific bar but the constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50%. The court also observed that SCs/STs do not require to prove backwardness, they are presumed to be backward.
The court held reservation in promotion to be constitutionally impermissible as once the advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing before being brought in the group would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it.
The issue of creamy layer amongst backward classes was dealt with, the policy was directed to be created in a manner that they must exclude the creamy layer by fixation of proper income, property or status criteria.
Lastly, the carry forward rule in reservation was held to be valid, where if in a particular year seats are left vacant in a reserved category, the said seats are then carried forward to the next following year.
Thereafter in M. Nagaraj v. Union of India, in 2006, another landmark judgement was given by the apex court regarding the 85th Amendment, which Article 16(4A) and introduced the principle of Consequential Seniority to promoted SC/ST candidates and the 77th amendment by Article 16(4A) had been inserted into the Constitution, which read “The state can make any provision for reservation in matters of promotion to any class or classes of posts…. For the Scheduled Castes or Scheduled Tribes.” (Paraphrased).
The apex court provided a list of ‘controlling factors’ which give a measure of the community’s backwardness and therefore form the basis that governs reservations:
- The backwardness of the community
- Inadequacy of Representation
- The efficiency of Administration (if the reserve is provided)
To substantiate the need for reservation for a particular collectivity, the state needs to provide “quantifiable data” for the controlling factors mentioned.
Secondly, The SC’s decision provided that the 77th & 85th amendments were confined to SCs/STs and were to not obliterate the 50% ceiling for reservations (as given in M.R Balaji v. the State of Mysore, 1962). It was also held that the concept of creamy layer applies to Article 16(4A, 4B).
A test of breach of the ‘ceiling’ of reservation of the previously given 50% was established, thus, if the following provisions were not complied with, there would be excessive reservation. The following provisions constitute the test:
- Reservation must not exceed 50% (despite compelling factors)
- Reservation must not be extended indefinitely
- Reservation must not be given to creamy layer sections of the depressed classes.
In 2011, Jarnail Singh v. Lachhmi Narain Gupta, the issues raised were if the judgement on M. Nagraj required review? If the ‘creamy layer’ among SC/STs is barred from obtaining promotions through reservations? The M. Nagaraj verdict held that for the Scheduled Caste and Scheduled Tribe candidates to be promoted, the states had to prove by “quantifiable data” that they were actually “backward” through controlling factors, however, this conflicted with the Indra Sawhney v. UoI judgement which stated that SCs/STs need not prove their backwardness as they are pressed to be backward.
In February 2020, in the case of Mukesh Kumar and Anr. vs. The State of Uttarakhand and Ors. The petitioner put forward that the government of Uttarakhand had not given reservation to SCs/ STs as directed by the M.Nagraj verdict, for those who are not “adequately represented”. The SC upheld Ajit Singh vs. the State of Punjab (1999) which said that Article 16(4) and Article 16(4A), does not give any fundamental right in reservation in promotion.
Then in June 2020, in the case of Umedsinh P. Chavda vs. Union of India and Ors., the political parties of Tamil Nadu challenged the policy of Central Government according to which the Central Government has decided to not give the reservation to the Other Backward Classes (OBC). A petition was filed under Article 32 in the SC. The Supreme Court of India held that the reservation is not a fundamental right thus no violation was made and hence this petition cannot be filed under Article 32.
The Now-Challenged 103rd Constitutional Amendment, 2019
The 103rd Constitution Amendment of 2019 that provides 10% reservation for Economically Backward Section (EWS) in state employment and education. This amendment has been challenged in the SC by numerous petitions and as of August 2020, has been referred to a 5-judge bench of the Supreme Court.
The petitioner’s grounds of challenge are the violation of the basic structure of the constitution and violating the Indra Sawhney v. UoI verdict of 1992 and Balaji v. State of Mysore which capped the extent of reservation at 50% of the total.
On August 27 2020, the 5-judge bench held that the verdict in E.V. Chinnaiah v. State of Andhra Pradesh needs to be reconsidered before the matter being placed before a larger bench thus reopening the case of sub-categorisation of Scheduled Castes and Scheduled Tribes for reservations, or the matter of “quota within quota” for SCs and STs.
The said Bench ruled that giving preferential treatment to certain Scheduled Castes over others to ensure equal representation of all Scheduled Castes is constitutional. The matter was forwarded to a larger SC bench because of the Channiah (2005) ruling, where the Supreme Court had ruled that state governments had no power to create sub-categories of SCs for reservation.
In regards to treating unequals equally, the bench observed:
“In case benefit which is meant for the emancipation of all the castes, included in the list of Scheduled Castes, is permitted to be usurped by few castes those who are adequately represented, have advanced and belonged to the creamy layer, then it would tantamount to creating inequality whereas in case of hunger every person is required to be fed and provided bread. The entire basket of fruits cannot be given to mighty at the cost of others under the guise of forming a homogeneous class.”
The Apex Court raised an interesting question, “If the backward classes were destined to carry their backwardness till eternity?” It was said that it is open to the state governments to provide on a rational basis the preferential treatment by fixing reasonable quota out of reserved seats to ensure adequate representation in services.
The court added “In our opinion, it is for the State Government to judge the equitable manner in which reservation has to be distributed. It can work out its methodology and give preferential treatment to a particular class more backward to Scheduled Castes without depriving others of benefit.
Evaluation
In a complex society like that of India, one with class and caste struggles, yet vibrant diversity, affirmative action is a key instrument of social empowerment and ensuring equal opportunities for all.
However, the mode of affirmative action needs to be diversified and not rely wholly on educational and employment reservation. Other direct and indirect mechanisms need to be employed for greater benefits to more disadvantaged people. Some of these measures for education include state sponsorship from primary to higher education, technical educational support, competition enabling support, etc.
For employment, measures of sponsorship, mentorship, skill development can be adopted. To transform the system of social and historical injustice and prejudice that exists today, caste sensitivity education, creating equal institutions and holistic integration approach is of utmost importance.
The implementation of the reservation system needs to be revamped and freed from the evils of corruption so that the maximum benefit from the policy can be transferred to the most disadvantaged.
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