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INTRODUCTION
It is a settled fact that India, after the attainment of independence
established itself as a welfare state. The Indian Constitution envisaged an
egalitarian society wherein all Indian citizens have equality of status. But the
decade long practice of castism in India has caused a big road block in
establishing an egalitarian society. Many of the Indians were treated as outcasts
and were denied of every kind of opportunity in the society. Hence the Indian
society was divided into Upper Cast and Lower Cast. The lower starta of the
Indian society were socially, economically and educationally backward.
After the attainment of the independence, the makers of the Indian
Constitution inculcated many provisions into the Indian Constitution to erase
these inequalities and to establish an egalitarian society. Article 15(4) and 16(4)
were made part of the Indian Constitution justifying the efforts to establish an
egalitarian society. Here we discuss the relevance of these Articles, the views
taken by the Indian Judiciary in interpreting these provisions and its effect on
Indian society.
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HISTORIC BACKGROUND AND DEVELOPMENT OF RESERVATION
POLICY
Hindu society was divided into four varnas or classes. At the top of the
hierarchy were the Brahmins or the priests, followed by the Kshatriyas or
warriors. The Vaisya or the framers and artisans, constitute the third class. At the
bottom are the shudras, the class responsible for serving the three higher groups.
Finally the Untouchables who fall completely outside of this system. It is for this
reason that the untouchables have also been termed avarnas or no class.
Jati, or caste, is the second factor specifying rank in the Hindu social
hierarchy. A caste is a social group having membership confined to those who
are born of members and the members are forbidden by social law to marry
outside the group. Each one of such group has a special name by which it is
called. Jatis are more precise than the Varna system and can be divided further
into sub castes. Untouchables formed the lowest strata of this caste system.
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.
Jatis in the three highest varnas in the hierarchy name Brahmins,Kshtariyas, and Vaisyas are considered twice born according to Hindu
scripture, meaning they are allowed to participate in Hindu ceremonies and are
considered to be pure. The untouchables were termed as polluting and their
presence in and around the other varnas were prevented. This concept of
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pollution versus purity governs the interaction between members of different
castes. The touch of an untouchable is considered defiling to an upper caster
Hindu. In southern India, where caste prejudice has been historically most
severe, even the sight of an untouchable was considered polluting. Untouchables
usually handled impure tasks such as work involving human waster and dead
animals. As a result, untouchables were barred from entering temples, drawing
water from upper castes wells, and all social interaction with upper caste
Hindus. These social rules were strictly imposed and violators were severely
punished and some times even killed.
Since the early 20thcentury, several terms have been used to describe the
untouchables. From the 1930s, they have also been known collectively as
Scheduled Castes, after the schedules appended to laws affecting their status.
In the 1970s, overwhelming majority in the nation that was still backward -
socially, economically, educationally, and politically. These victims of
entrenched backwardness comprise the present scheduled castes (SC),
scheduled tribes (ST) and other backward classes (OBC). Even though,
these classes are generically the "Backward Classes," the nature and
magnitude of their backwardness are not the same.
In the Indian context, reservations were introduced during the last
decades of the 19th century at a time when the subcontinent could be
broadly divided according to two main forms of governance - British India
and the 600 princely states. Some of these states were progressive andeager to modernize through the promotion of education and industry
and by maintaining unity among their own people. Mysore in south
India and Baroda and Kolhapur in western India took considerable
interest inawakening and advancement of the minorities and deprived sections
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of the society. The untouchables were asking for concessions and facilities
for their upliftment and had not organized themselves as a political force. It
was with the arrival prominent Dalit politician and lawyer, BhimraoRamji
Ambedkar that they acquired a leader of stature and education who
could make a political difference.
The British government released the Cabinet Mission Statement on May
16, 1946 and a set of proposals to guide the framing of a new
Indian constitution. The make-up of the Constituent Assembly reflected the
reality of what groups wield power in India then. Scheduled Caste delegates
did have some influence during the Assembly proceedings, with several
holding significant positions like Dr. B.R Ambedkar who was the chairman
of the drafting committee. From theoutset, the Constituent Assembly laid out
clearly itsobjectives andphilosophy forthenew constitution. Theframers main
goals were guarantees of equality, basic freedoms of expression, as
wellasadequate safeguards forminorities, backward classes andtribe's, and
depressed andclasses. TheConstitution ofIndiaseemstoassumethatatthe
timeofindependence allgroups ofIndian society werenotplaced onequal footing.
Asmall sectionofthesocietyhadadvanced under theBritish rule. Butalargenumber
ofpeople were suffering fromilliteracy, ignorance and poverty. Many
sectionsofthe society were cutofffromthemainstream of sociallife.Therefore,
theConstitution ofIndiawasasframed asnotonlytoremain aformal legaldocument-
b1f(alsotobecome asocial document withsocialandeconomic transformation
ofthecountryasitsgoal.
After achievingindependence fromtheBritish, India became ademocraticand
egalitarian nation. The framersofthe constitution hence made certain
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arrangements for the backward classes to allow them to enjoy ahumane
lifestyle and fortheir upliftment. Backward classeswere given reservation on
the Political, Educational and Employment spheres. The Constitution
directs that the state shall promote with special care the educational and
economic interests oftheweaker sections ofthepeople, inparticular, ofthe
Schedule Casts and Schedule Tribes, and shall protect them from social
injusticeand all forms of exploitation. The policyof reservation was to
extendto all public institutions, such as government-run educational
facilities. Laterintunewiththechanging needsnumerous amendments were
made intothe constitution like article 15(4),Article 16(4),Article 16(4A),
Article 16(4B), Article 335, and Article 320(4). These articles provide
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explicitly forreservation ineducational institutions andemployment for the
backward classes andtheauthority ofthestatetomakeanyrequired changes
withtimeasrequired.
CONCEPT OFRESERVATION ARTICLE 15(4)AND16(4)
Reservations as aconcept is very vide. Itcan begeneralized as an anti
povertymeasure. Itisanaffirmative actiontoundotheinjustice doneinthe past to
aparticular group or community, Article 15(4) and 16(4) of the
/
,
Indian Constitutionprovides fop-reservation forsocially and educationally
backward classforeducation andpublic employment. Theverybasisofthis
provisions lies onthe attainment ofmuch cherished concept ofegalitarian
society. The protective discrimination offered by Article 15(4) and 16(4)
was intended touplift socially and educationally backward citizens tothe
level attained by others. As stated by Justice ChinappaReddy in K.C.
VasanthKumar V.State ofKarnataka (A.I.R 1985 SC 1495) that "Several
bridges have to be erected, sothat they may cross the Rubicon. Professional
educationandemployment underthestatearethought tobetwo such bridges.
Hence the special provision for advancement and for reservation
underArticle 15(4)and16(4)."
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Article 15prohibits discretion onthe ground ofreligion, race, casts, and
placeofbirth. Article 15(4)statesthat, "Nothing inthisarticle orinclause
(2)ofArticle 29shallprevent thestatefrom making anyspecialprovision for the
advancement of any socially or educationally backward class of citizens
orfor theschedule castortribe."
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Article 16 providesfor equality of opportunity in public employment.
Article 16(4)statesthat, "Nothing inthisarticleshallprevent thestate from
making anyprovision for thereservation ofappointments orposts infavor
ofany backward class ofcitizens which, intheopinion oftheState, isnot
adequately represented intheservice underthestate."
Article 15asoriginally enacted contained onlythreesubclauses. Subclause
(4)wasinserted bytheConstitution (1stAmendment) Act, 1951toundothe harm
done by the decision of the Supreme Court inState ofM adras V.
~
/
,
Champak amDorairajan(A.I.R-"'i951 SC 226).This case was against the
communal G.O followed by the state of Madras in giving admission to
Medical and Engineering Colleges under the State of Madras. This G.O
which prevailed before the commencement of the constitution, the seats
were allotted on communal basis to Brahmins, Non-Brahmins, Backward
Hindus,Harijans,AngloIndians&IndianChristiansand Muslims.Since
commencement of theconstitution thepetitioner challenged thesaidG.Oas
violativeofhisfundamental rightguaranteed underArticle 15(1)and29(2). The
Supreme Court found the communal G.O as violativeof the
fundamental right guaranteedunder Article 29(2) of the constitution and
heldtobevoidunderArticle 13oftheconstitution.
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Thiswasablowtothepolicy ofprotective discrimination andupliftmentof
thesocially andeducationally backward. TheGovernment swiftlyreactedto this
situation andthe Constitution wasamended bythe (First Amendment) Act
1951byinserting Clause (4)underArticle 15which cameintoforceon
is"June 1951.Theintention ofthe 1stAmendment wastobringArticle 15
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8
andArticle 29inlinewitharticle 16(4)which hadprovided forreservation
toBackward Classofcitizens.
CRITERIA FORDETERMINING THEBACKWARD
CLASS
One ofthe major questions before the government and the court was
regarding thebasisonwhichthebackward istobedetermined. Thequestion
waswhether castlabel should besufficient toidentify social andeconomic
backwardness orelsewhatisthetest?Anumber ofcommissions appointed for
this purpose accepted cast as the identifying criteria for determining
sociallyandeducationally backward, thecourtstookadifferent view. Some
ofthejudicial viewinthisregardisdiscussed below.
Language in Article 15(4)and16(4)clearlyindicatesthattheprotective
discrimination which cannot be struck down as discriminatory was to be
accorded to a class shown to be socially and educationally backward.
Nothing isstated inthese provisions thatsuchpreferential treatment canbegiven to the member of acast who may be presumed to be socially and
educationally backward. BalajiV.State ofMysore (A.I.R 1963SC649)in
whichthisissuewasdiscussed. Thiscasewasconcerned withthevalidity of
reservation made under Article 15(4) to medical colleges in Mysore and
Karnataka University upontherecommendations madebyDr.NaganGowda
committee appointed bythestategovernment. According tothescheme,the
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backward class were divided into two namely Backward and More
Backward and were allotted with 50% ofthe total seats. Apart fromthat
15%seats were reserved forschedule castand3%seats were reserved for
schedule tribe which amounted to atotal reservation of 68% ofthe seats.
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1
P.B.Gajendragadkar, J.speaking fortheConstitution Benchpointed outthat
indetermining the social backwardness ofgroups orclass ofcitizens caste
cannot bemade the sole ordominant test inthat behalf. Gajendragadkar, J
observed: "Social backwardness is onthe ultimate analysis the result of
poverty, toalarge extent. The classesofcitizens who aredeplorably poor
automatically become socially backward." The general attitude of the
Supreme Court was that the Constitution uses the word "class" and not
"caste". Therefore, although caste mightbe one ofthe relevant factors it
cannot bemade the soledetermining factor. While reservationonly onthe
basisofcastewouldbeviolativeofArticle 15(4)butinIndian circumstances
-
~"
..
casteasawhole canbebackward andcangetthebenefit ofreservation on
that basis because caste is also a class of citizen. On theother hand, a
classification isnotvitiated onthegroundthatitdoesnotusecasteasoneof
thefactors.
In R. Chitralekhav. State of Mysore (A.I.R 1964 SC 1823) the
Government classified the socially and educationally backward classes on
thebasis ofeconomic condition andoccupation forthepurposes ofArticle
15(4).The court unanimously agreed that the constitution used the word
"class" and not "caste". Therefore under no circumstance a'class' canbe
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1equated to a 'caste' though the caste of an individual or a group of
individuals may beconsidered along with other relevant factors inputting
himinaparticular class.Aclassification isnotvitiated onthegroundthatit
doesnotusecasteasoneofthefactors.
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1
InTrilokiNathv.State ofJ&K, (A.I.R 1967SC 1283) byanorderof
theGovernment 50% vacancies inthe Stateservices were reserved forthe
Muslims, out of the remaining 50%, 40% were reserved for the Jammu
Hindus and 10%forthe Kashmiri Hindus. The petitioners contended that they
had been discriminated against solely onthe ground ofreligion and place
ofresidence. Junior officers were promoted over officers senior to
themontheground solelythatthejunior members belonged totheMuslim
community orthat they were Hindus belonging tothe Jammu Province of the
State ofJammu and Kashmir. The Statecontended that Muslims asa
community in the whole of the State of Jammu and Kashmir formed a
!
.
backward classofcitizens and..thiYwerenotadequately represented inthe
services of the State. SubbaRao, J. speakingfor the court held that
"backward class" is not used as synonymous with "backward caste" or
"backward community". Themembers ofanentire,casteorcommunity may
inthe social, economic and educational scale ofvalues atagiven timebe
backward andmayonthataccountbetreated asabackward class,butthatis not
because they are members ofacaste orcommunity, but because they form
aclass. Again he observed that for the purpose of Article 16(4) in
determining whether asection forms aclass, atest solely based oncaste,
community, race,religion, sex,descent,placeofbirthorresidence cannotbe
adopted,because itwould directly offendtheConstitution.
InstateofAndhra Pradesh v.U.S.V.Balram, (A.I.R 1972SC 1375)a
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1listofbackward classwhichprima facieappeared tohavebeenprepared on
thebasisofcastwasunder challenge. Itwasobserved byC.A.Vaidyalingam
J,"one thingisclearthat ifanentire castisasafact, found tobesocially
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11
andeducationally backward, their inclusion inthelistofbackward classby their
castname isnotviolativeofArticle 15(4).Itwasfurther heldthat"if after
collecting the necessary data, itisfound that the cast asawhole is socially and
educationally backward, inouropinion, the reservation made forsuchpersons
willhavetobeupheld notwithstanding thefactthatafew individuals inthat
group maybeboth socially andeducationally above the generalaverage.
InKcS.Jayasreev. State ofKerala(A.I.R 1976 SC 2381) the State
Government ordered thatmembers.,/o'ffamilies consisting ofEzhavaswhose
aggregate annual income wasrbelowRs. 6000/- would be entitledto
admission totheseatsreserved forsociallyandeducationally backward class
intheMBBS course was challenged. Thepetitioners contended thatthere
wasnoreasontoexclude aninsignificant partofthecommunity onthebasis
ofincome alone. The Statecontended thatthegovernment orderwasnotin
violation ofArticle 15(4)because theexpression 'backward class' inArticle
15(4) is notused as synonymous with backward caste or backward
community. The Courtaccepted the contention of the State. Therefore
neither castenorpoverty alone canbethecriteria though both arerelevant
factorsindeciding thebackwardness ofaclass.
In K.C.VasanthKumar v.StateofKarnataka (Ad.R1985 SC 1495)
thecourtwhilegiving guidelines totheproposed commission appointed for
examining the question of affording better employment and education to
Schedule Cast, Schedule Tribe and Backward Class, opined in favour of
secular criteriafordetermination ofsocial backwardness inplace ofcaste
"
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12
criteria contendingthat castecriteria didnotinclude thatsection ofpersons
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13
who didnot follow caste criteria. They further contended that caste based
reservations helped only the well-off sections of that caste getting the
advantage of reservation. On theother hand, some of the judges like
ChinnappaReddy,J.werenotinfavoroftotalexclusion ofcastecriteria.
INIndraSawhneyv. Union of India (AIR 1993 SC 477) commonly known
as MandalCase, the petitioners challenged the validity of 27% reservation
extended to socially and Educationally Backward Class of citizens. The
majority relying on the Constituent Assembly debates held that,intheIndian
context classisusedasasocialclassandnotasaclassin
the Marxistsense of the term. In Indiaespecially in rural areas caste-
-
,;?
/'
occupation-povertyisanever-present reality.Hence acastecanbeandquite
often isa social class in India. If it is socially backward it would be a
backward class forthe purposes ofArticle 16(4). Sawant, J.held that the
backward class of citizens referred to in Article 16(4) is the socially
backward classofcitizens whoseeducational andeconomic backwardness is
onacco~ntoftheir social backwardness. Acastebyitselfmayconstitute a class.
However, this view wasnot supported byThommen, KuldeepSingh
andSahai,JJandinsisted oneducational socialandeconomic backwardness.
Thediscussion inthe foregoing paragraph give abrief idea ofthejudicial
viewuponthequestion astowhether theword "class" inArticle 15(4)and
16(4) and"cast" means the same. Since the Schedule Cast and Schedule
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Tribeareinthelowest rung oftheladderanypreferential treatment intheir favor
met with less judicial resistance. In case of the Socially and
Educationally Backward Classofcitizens thecast, itstraditional functions,
itsposition inrelation touppercastsbythestandards ofpurityandpollution,
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13
theiroccupation aretobelookedintoandifthoseaspects aresatisfactory the
castmustbelabeled associally andeducationally backward.
InE.V.Chinnaiahv.state of Andhra Pradesh, [(2005)1 SCC 394] the
validity ofAndhra Pradesh Schedule Cast (RationalisationofReservation)
Act2000 was challenged which classified the casts inthe presidential list into
four groups in accordance with the degree of backwardness. The. Supreme
Court held that the members of schedule cast form a class by themselves and
are of a homogeneous group and hence any further sub classification would
be impermissible while applying the principles of reservation.
Hence itcanbe seen that there isonly athin line between the concept of
classandcast.Itcanbequiet oftenseenasoverlapping. Hence this debate
willbeanongoingone.
Nature andDegree ofbackwardness underArticle 15(4)and16(4)
Article 15(4) providesfor reservation for socially or educationally
backward classofcitizens orfortheschedule castortribewhere asArticle
16(4) providesreservation for Backward Class. So there is an obvious
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14
question whether theexpression backward classofcitizens inArticle 16(4) is
same as the expression socially and educationally backward class of
citizens inArticle 15(4).Nowlet's examinesomeofthejudicial viewinthis area.
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15
InJankiPrasad Parimoov.State ofJ& K, (A.I.R 1973 SC 930) the Supreme
Courtwhile dealing withtheissueofpromotion ofteachers tothe post ofHead
Master or Tehsil Education officer who were reverted asa . result of the
decision in TrilokNath'scase, held that the expression backward
classofcitizens inArticle 16(4)issameastheexpression socially and educationally
backward class of citizens inArticle 15(4). In orderto qualifyforbeingcalled
a'backward classcitizen' hemustbeamemberofa socially and educationally
backward class. Itis social and educational backwardness ofaclass which
ismaterial forthe purpose ofboth Article
15(4)and16(4).
InVasanthKumar v.State ofKarnataka, (A.I.R 1985SC1495)thecourt
while giving guidelines to the proposed commission appointed for
examining the question of affording better employment and education to
Schedule Cast,Schedule TribeandBackward Class,tookasimilarviewthat
...
thebackward class ofcitizen referred toinArticle 16(4),despite the short
description, arethesameas thesociallyandeducationally backward classof
citizens referred to in article 15(4).Article 16(4) furtherrequires that the
backward classisnotadequately represented inserviceunderthestate.
However, thisviewwasrejected inthecaseofI ndraSawhneyv.Union
ofIndia (AIR1993SC477)anditwasheldthatidentification ofbackward class
can be done with reference to cast along with other occupational groups,
communities andclasses. Thecourt further went ontoobserve that the
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backwardness under Article 16(4) is wider than under Article 15(4).
Certain classes which maynotqualify asbackward underArticle 15(4)may
qualify assuchunder Article 16(4).According toSawant, J."aclasswhich
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15
is notsociallyandeducationally backwardthougheconomically oreven
educationally backward isnot abackward classforthepurposes ofArticle
16(4), becausethe purpose of reservations under Article 16(4) is not
alleviation ofpoverty buttogivesuchclassesanadequate shareinpower."
The degree of backwardness was also an important aspect to identify
whether aparticular classwaseligibletobetermed asabackward class.
Itwasheld inJankiPrasadParimoov.State ofJ& K, (A.I.R 1973SC
930)thatthedegree ofbackward....
essofthebackward classandsociallyand
educationally backward class of citizens shall be comparable to that of
Scheduled Castes and Scheduled Tribes who are standing examples of
backwardness, socially andeducationally. Similar viewswere expressed in
K.S.Jayasreev.State ofKerala(A.I.R1976SC2381).
Ins.c.VasanthKumarv.State of Karnataka, (A.I.R 1985 SC 1495)
Chadrachud, C.J. observed that, "In so far as the backward class are
concerned, twotestsaretobeconjunctively applied foridentifying themfor the
purpose of reservation in employment and education: One that they
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15
shouldbecomparable totheSchedule CastandSchedule Tribeinthematter
oftheirbackwardness; andtwo,theyshould satisfythemeanstestsuchasa state
government may lay down in the context of prevailing economic
conditions."
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15
.InIndraSawhneyv.Union ofIndia, (AIR 1993SC477)majorityheld
thatthebackwardness oftheotherbackward classesneednotbecomparable
tothebackwardness oftheScheduled CastesandScheduled Tribes.
Extent ofreservation
Thequestion ofextend ofreservation firstaroseinM.R. Balajiv.State of Mysore
(A.I.R 1963SC649).Inthiscasethebackward classweredivided intotwonamely
Backward andMo .Backward andwereallotted with50% ofthetotalseats.Apart
fromthat 15%seatswerereserved forschedule cast and 3%seats were reserved
for schedule tribe which amounted to atotal reservation
of68%oftheseatstomedicalcolleges inMysore andKamataka University. This
was struck down as excessive and unconstitutional. Gajendragadkar,
J.observed thatspecialprovision shouldbelessthan50per cent,howmuch
lesswould depend ontherelevant prevailing circumstances ofeachcase.
However thecaution against excess reservation was firstpointed outin
G.M.,Southern Rly. v.Rangachari(A.I.R 1962 SC36) where initwas appealed
against theorderofthemadrasHighCourtrestraining theRailway
Boardfromgiving effecttothecircularreserving selection posttoSchedule Cast
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and Schedule Tribe inwhich appointment can be done onlythrough
promotion. Even thoughquestion ofextent ofreservation wasnot directly
involved inRangacharicase.Gajendragadkar, J.saidthatreservation under
Article 16(4)isintended merelytogiveadequate representation tobackward
communities. Itcannot beused for creating monopolies or for unduly or
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illegitimatelydisturbing the legitimate interests of other employees.
Wanchoo, J.opined thatreserving afixpercentage ofseats everyyearmay
takealongtimebefore inadequacy ofrepresentation isovercome, therefore the
Government can decide toreserve afixed number ofposts the andtill
thoseposts arefilledupbythebackward classes allappointments willgoto
themiftheyfulfilltheminimum qualification. Oncethisnumber isreached
theGovernment isdeprived ofitspowertomakefurtherreservations.
The idea given by Wanchoo, J.did not work out inpractice because most
of the time even for limited number of reservations, every year
qualified backwardclass candidates-were notavailable. This compelledthe
-
.//
government toadopt carry-forward rulewhich came inconflict withruling in
Balaji'scase. In cases where the availability of reserved category
candidates islessthanthevacancies setasideforthem,theGovernment has to
adopt either ofthe two alternatives i.e.to provide for carrying onthe
unfulfilled vacancies forthenextyearornexttothenextyear,ortoprovide for
filling of the vacancies from the general quota candidates and carry
forwardthe.unfillcdpostsbybackward classestothenextyearquota.
Buttheproblem ariseswheninaparticular yearduetocarryforwardrule more
than 50% of vacancies are reserved. In T.Devadasanv. Unionof India (AIR
1964 SC 179) this was the issue. Union Public Service Commission
hadprovided for17-1/2%reservation forScheduled Castesand Scheduled
Tribes.Incaseofnon-availability ofreserved category candidates inaparticular
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17yearthepostshadtobefilledbygeneral category candidates andthenumber
ofsuchvacancies weretobecarried forward tobefilledby thereserved category
candidate nextyear.Duetothisruleofcarryforward
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reservation inaparticular yearamounted to65%ofthetotalvacancies. The
petitioner contended that reservationwas excessive which destroyed his
rightunderArticle 16(1)andArticle 14.Thecourtonthebasisofdecision
inBalajicaseheldthereservation excessive and,therefore, unconstitutional. It
further statedthat the guarantee ofequality under Article 16(1)istoeach
individual citizenandtoappointments toanyofficeundertheState.Itmeans that
onevery occasion forrecruitment theStateshould seethat allcitizens are treated
equally. In orderto effectuate the guarantee each year of recruitment
willhavetobeconsidered byitself.Thus,majority differedfrom
Wanchoo's, J. decisioninRangacharicase holding that a cent per cent
/"
reservation inaparticular year.-ouldbeunconstitutional inview ofBalaji
decision
.
SubbaRao, J. gave dissentingjudgment. He relied on Wanchoo's, J.
judgment inRangacharicase and held that Article 16(4) provides for
adequate representation taking into consideration entire cadre strength.
According tohim,ifitiswithin thepower oftheStatetomakereservations
thenreservation madeinoneselection orspreadovermanyselection isonly
aconvenient method ofimplementing theprovision ofreservation. Unless it is
established that an unreasonably disproportionate part of the cadre
strength is filled up with the said castes and tribes, it is not possible to
contend that the provision is not one of reservation but amounts to an
extinction ofthefundamental right.
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InState ofKerala v.N.M. Thomas (A.I.R 176SC490) under theKerala
StateandSubordinate Services Rules, 1950certain relaxation wasgivento
Scheduled CasteandScheduled Tribecandidates passing departmental tests
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forpromotions. Forpromotion toupper division clerks fromlowerdivision
clerksthecriteria ofseniority-cum-merit wasadopted. Duetorelaxation in
meritqualification in 1972,34outof51vacancies inupper division clerks went
to Scheduled Caste candidates. Itappeared thatthe 34 members of
SC/SThadbecome seniormostinthelowergrade.TheHighCourtquashed the
promotionson the ground that itwas excessive. The SupremeCourt upheld
thepromotions. Ray,C.J.heldthatthepromotions madeinservices asawhole
isnowhere near50%ofthetotalnumber oftheposts. Thus,the majoritydiffered
fromtherulingofthecourtin Devadasancasebasically on the ground that the
strength ofthe cadre asawhole should betaken into account.
InIndraSawhneyv.Union ofIndia (AIR 1993se477) themajority heldthat
50%ruleshould beapplied toeachyearotherwise itmayhappen
that(ifentirecadrestrength istakenasaunit)theopencompetition channel
getschoked forsomeyears andmeanwhile thegeneral category candidates
maybecome age barred and ineligible. The equality ofopportunity under
Article 16(1)is to each individual citizen while special provision under
Article 16(4)isforsocially disadvantaged classes. Both shouldbebalanced
andneither shouldbeallowedtoeclipsetheother.
However, againinR.K. Sabharwalv.State ofPunjab [(1995) 2see
745]whichwasacaseofpromotion andtheissueinthiscasewasoperation of
roaster system, the petitioners challenged the Punjab Service Of
Engineers Class IPWD (IB)Rules 1964wherein 16%outofthetotalpost which
is to be filled by promotion was reserved for Schedule cast and Backward
Class onthe basis ofa100point roster system which wastobe
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19
implemented inthe form of arunning account from year toyear toyear. Court
stated that entire cadre strength should be taken into account to determine
whether reservation uptotherequired limithasbeenreached. The
courtobserved thattheroster systemitselfwillensurethatthereisnoexcess
reservation. Withregard toruling inI ndraSawhneycasethatreservation in ayear
should not go beyond 50% the Court held that itapplied to initial
appointments..Insubstance the court saidthatpresuming that 100%ofthe
vacancies havebeen filledeachpostgetsmarked fortheparticular category
ofcandidate tobeappointed againstitandanysubsequent vacancy hastobe
filledby that category candidate." The Court was concerned with the
f
possibility thatreservation inentfrecadre may exceed 50% limit ifevery
yearhalfoftheseatsarereserved. Further thecourtpermitted carryforward
ofvacancies those are not filled bythe reserved group in ajust and fair
manner.
The Constitution(Eighty-first Amendment) Act, 2000 added Article
16(4B) whichin substance gives legislative assent to the judgment in
Sabharwalcase. Article 16(4B)reads asfollows "nothing inthis Article
shallprevent the state fromconsidering anyunfulfilled vacancies ofayear
which arereserved forbeing filled upinthat year inaccordance with any
provision forreservation madeunderclause (4)orclause (4A)asaseparate class
ofvacancies tobefilledupinanysucceeding year oryears andsuch
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19
classofvacancies shallnotbeconsidered together withthevacancies ofthe
yearinwhichtheyarebeing filledupfordetermining theceiling offiftyper
centreservation ontotalnumber ofvacancies ofthatyear."
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21
Concept ofcreamy layer
Although the Supreme Court has finally accepted that caste canbethe
determinant ofbackwardness yetittriedtostrikeabalance withthesecular
notion bybringing inthe concept ofCreamy layer. Views haveoften been
voiced inthecourt andoutside forskimming thecreamy layeramongst the
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21
protectedcommunities while giving them benefit under Article 15(4) or
16(4).In K.S. Jayasreev.State of Kerala (A.I.R 1976 SC 2381) the
Supreme Court validated the government order for providing reservation
benefits onlytothose members oftheEzhavacommunity whose aggregate
incomewasbelowRs6000perannum.
InIndraSawhneyv.Union ofIndia (AIR 1993SC477)alltheJudges except
Pandian, J.held that means test should be adopted to exclude the better off
individuals from the protected group for the purpose of reservation.
Kania, C.J.andVenkatachaliah, AhmadiandJeevanReddy, JJ.
held that the very concept ofaclass denotes anumber ofpersons having
,;
-
certaincommontraitswhich dist-ifi'guishthemfromtheothers.Inabackward
class under clause (4) of Article 16,if the connecting link is the social
backwardness itshould bethesameinagivenclass.Ifsomeofthemembers
arefartoo advanced socially the connecting thread between them andthe
remaining class snaps. Such exclusionbenefits the truly backward. They,
however, added that the basis of exclusion should not be only economic
unless economic advancement is sohigh that itnecessarily means social
advancement.
Thedifference ofopinion hasbeenonthequestion ofwhatshouldbethe
criteriafordetermining thecreamylayerwhether itshould bedecided onthe
basis ofeconomic well-being or social advancement should also betaken
into account. Sawant, J.held that ithas to bejudged on the basis ofthe social
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21
capacities gained bythem to compete with the forward classes. So long
asthe individuals belonging tothe backward classes donot develop sufficient
capacities oftheir owntocompete withothers theycanhardlybe
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classifiedas forward. Thommen, J. however, stressed on the economic
criteria. According to him it is not sufficient that the person termed as
backward issobyreason ofilliteracy, ignorance, social backwardness. If
despite these handicaps they have necessary financial strength to raise
themselves the Constitution does not extend the benefit of reservation to
them.
InE.V.Chinnaiahv.stateofAndhra Pradesh, [(2005) 1SCC394]the
validity ofAndhra Pradesh Schedule Cast (RationalisationofReservation)Act
2000 was challenged which classified the casts inthe presidential list
into fourgroups in accordance.
w-
j1h"thedegree ofbackwardness. Santosh
Hegde, 1.,observed that "We donot think that the principle laid down in
Indira SwahneyCase for sub classification of OBC can be applied as
precedent law for sub classifying or sub grouping schedule cast III
Presidential list because the very samejudgment has held that it is not
applicable toschedule cast."
InM.Nagarajv.Union ofIndia [(2006)8SCC212] theCourtwenton to
observe that the concept ofcreamy layer istobe observed even inthe
casesofschedule CastandSchedule Tribe.
Thus, we findthat although the Supreme Court has accepted that caste
canbethecriteria forgivingreservations; itstillmaintains thattheprovision is for
backward sections of the population who for the time being need
support.Although backwardnesscanbeidentified onthebasisofcastebutit
isnotthecasteassuchwhich isgivenproportionate representation. Itisthe
individuals comprising aclasswhoaresuffering because theyaremembers of a
socially, economically and educationally depressed class who need
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support. Hence the concept ofcreamy layer, tries toexclude the advanced
sectionsofthepopulation fromgettingthebenefits ofprotective measures.
MERITORIOUS RESERVED CATEGORY CANDIDATES
AND GENERAL MERIT
InIndraSawhneyv.Union ofIndia (AIR 1993SC477) thechallenge was onthe
validity of27% reservationextended to socially and EducationallyBackward
Class ofcitizens. this was one ofthe question before theninejudge bench
Reddy, J. noted thatreservation under Article 16(4) do not
operateoncommunal ground. Therefore ifa member fromreserved category
gets selected ingeneral category, his selection willnot becounted
againstthequotalimitprovided tohisclass.
Similarly, inR.K. Sabharwalv.State ofPunjab, [(1995) 2SCC 745] the
Supreme Court held that while general category candidates are not
entitledtofillthereserved posts;reserved category candidates areentitledto
competeforthegeneral categoryposts.Thefactthatconsiderable numberof
members of backward class has been appointed/promoted against general
seatsintheStateservices maybearelevant factorfortheStateGovernment
toreviewthequestion ofcontinuing reservation forthesaidclass.
InRitesh.R.Sah V.Dr.Y.L.Yamul,[(1996) 3SCC 253]thepetitioners
challenged theadmission ofrespondents 5to36forMBBS andBDScourse on
the reservation seat even though they were eligible for admission on merit.
Because ofthis, the petitioners who belonged to the same category
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failedtogetanadmission. Herethecourtheldthat,astudent whoisentitled
tobeadmitted onthebasis ofmeritthough belonging toreserved category
cannot be considered against seat reserved for reserved category. Court
further held that, while areserved category candidate is entitled to take
admission onbasis ofhismerit,hewillhavetheoption totakeadmission in the
college where a specific number of seats are reserved for reserved
category butwhile computing thepercentage ofreservation hewilldeemed
tohave been admitted asan open category candidate and not asreserved
candidate.
RESERVATION
INPROMOTION
The question regarding the reservation promotion came up before the
court on a number of occasions. Article 16(4) statesthat reservation in
servicesmaybemade forbackward classofcitizens whoarenotadequatelyrepresented inservices. The issuewas related to legality ofreservation in
promotions and if at all such reservation was permissible, to what
extend.TheApexCourt expressednumerous opinion inthisregard ofwhich
afewaredelthereunder.
In G.M.Southern Rly.v.Rangachari(A.I.R 1962 SC36)where init was
appealed against the order ofthe madras High Court restraining the Railway
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Board fromgiving effecttothecircular reserving selection postto Schedule
Cast and Schedule Tribe inwhich appointment canbedone only through
promotion itwas contended bythe respondent that Article 16(4) applied
only to initial appointments and not to promotions. Therefore, as
suchprovision forreservation inpromotion iscontravening Article 16(1).
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27
Gajendragadkar, J.held thatcondition precedent forapplication ofArticle
16(4)isinadequate representation whichmayrefertosizeaswellasvalues,
numbers aswellasthenature ofappointments soitinvolves notmerelythe
numerical test but alsothe qualitative oneand,therefore, reservations will
apply not only to initial appointments but to selection posts as well.
Wanchooand Ayyangar, n.however, dissented and held that adequate
representation connotes onlyquantitative representation andnotqualitative.However the order of the madras High Court was set aside as
Gajendragadkar, SankarDasGupta n.,were in favour of reservation in
promotion
.
InState ofPunjab v.HiraLalthePunjab Government passed anorder
providing for reservation. The order provided that the first block of 10
vacancies would be reserved for Scheduled Castes/Tribes and Backward
Classes.Backward classofficials weretobeconsidered onlyifnoofficialof
Scheduled Caste and Scheduled Tribewasavailable. TheHigh Court ruled that
reservation in promotion was valid in view of the Supreme Court judgment
inG.M.Southern Rly. v.Rangachari(A.I.R 1962SC36)butthe Government
hasviolated Article 16(1)byreserving thefirstcutofagroup of 10posts for the
Scheduled Castes, Scheduled Tribes and Backward Classes. However, the
Supreme Court rejected the argument ofcounsel of therespondents that
reservation inpromotion would result ininjustice asa person getting the
benefit ofthe reservation mayjump over the heads of several ofhis seniors not
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27onlyinhisowngrade but even inhigher grades. The Court observed itis an
inevitable consequence of any reservation of poststhatjunior officers
areallowed totakeamarch overtheir seniors but theConstitution-makers
thought fitintheinterests ofthesociety asawhole
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27
.-
thatthebackward classofcitizens ofthiscountry should beafforded certain
benefits overothers.
InState ofKerala v.N.M. Thomas (A.I.R 176 SC 490) also special
provision forreservation inpromotion was held tobevalid. However the
Supreme Court observed that care has been taken that efficiency is not
impaired.
The questionwas again rai~$d InI ndraSawhneyv. Union of India
(AIR1993SC477)theSupremeCourtunanimously heldthatreservation ofappointments orposts underArticle 16(4)isconfined toinitial appointment
onlyandcannot extend toproviding reservation inthematter ofpromotion.
Itwascontended thatproviding reservation inpromotion multiplies therisk to
efficiency in administration. Itwould alsoresult in the creation of a
permanent separate category apart from the mainstream - a vertical
division of the administrative apparatus. Efficiency would be affectedadversely inatwofold way.First,therewouldnotbeanywilltocompeteby
thebackward classmembers andsecondly, itwould causeheart-burning and
frustration inthenon-favored groupresulting inlossofefficiency.
However, Parliament amended the Constitution and added Article
16(4A)whichgivesvalidity toreservation inpromotions doneforScheduled
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27Castes andScheduled Tribes. According toArticle 16(4A)"Nothing inthis
article shallprevent the Statefrommaking anyprovision forreservation in
matters ofpromotion toanyclassorclassesofposts intheserviceunderthe
Stateinfavor ofSchedule Castorschedule Tribe which, inthe opinion of
thestate,arenotadequately represented intheserviceundertheState."
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27
InR.K.Sabharwalv.State ofPunjab [(1995)2SCC 745] itheldthat
thereservation inpromotion wasvalid asitwasdoneonthebasis ofa100 point
roster system which ensured that the reservation with in the 50% ceiling
limit. Moreover each post gets marked for the category of the candidate to
be appointed against itand any subsequent vacancy isto be filledbythat
category candidate alone.Thecourtheldthat theentire cadre strength should
betaken intoaccount todetermine whether thereservation uptotherequired
limithasbeenreached.
/
'
InUnion ofIndia v.VirpaSingh Chouhan[(1995) 6SCC 684]the
mainquestionwasregardingthe consequential senioritygivenalongwith
promotion tothereserved candidates andtheconcept of"catch up"rulefirst
appeared. In the category of railway Guards there were four categories
namely Grade C,Grade B, Grade Aand Aspecial. 150/0 ofthe vacancies
werereserved forSchedule Castand7.5%werereserved forSchedule Tribe
ininitial appointment aswell asinpromotion. Promotion toAspecial was
madefromthecandidates ingradeAinwhichtherewasgeneral andSC/ST
candidates. The ChiefController promoted certain general candidates toA
Specialonadhocbasis. Latertheywerereverted andSC/STcandidates were
promoted. Thepetitioners contented that"catch up"rulewastobeadopted and
the seniority from the initial appointment was to be considered. The
courtheldthatitopentothestate,ifsoadvised, tosaythatwhiletheruleof
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27reservation shallapplied, thecandidate promoted earlier byvirtue ofruleof
reservation/roster shall notbeentitle toseniority over seniors inthe feeder
category.
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29
InAjithsinghJanujuaV.State ofPunjab [(1996) 2SCC 715] alsothe
contaversywas over the consequential seniority given to the candidates
promoted through reservation against general category post inthe highergrade. Here the court observed that without "catch up" rule, giving
weightage to earlier promotion secured by roster point promoteewould
resultinreverse discrimination andwouldviolate equality underArticle 14,
15and16.
However inJagdishlalV.State ofHaryana [(1997)6see538] thethree-
~
judgebench took the view that under the general rule of service
e
-
jurisprudence relating toseniority, thedateofcontinuous officiationhasto
betakenintoaccount andifsotherosterpointpromoteesareentitled tothe
benefitofcontinuous officiation.
InAjithSing (II) V. State ofPunjab[(1999) 7see209, the limited question
was regarding the conflicting decision inVirpalsinghChouhan,
AjithSingh(I) and Jagithlal'scase. The courtoverruled thejudgment in
Jagithlal'scase.
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29
class or classes of posts in the service under the state in favor of the
Schedule CastandSchedule Tribewhich intheopinion oftheStatearenot
adequately represented intheservicesundertheState."
InM.Nagarajv.union of India [(2006) 8SCC212] the constitutional
validity of the Constitution (Seventy seventh Amendment) Act 1995,
Constitution (Eighty FirstAmendment) Act2000,Constitution (EightyFifthAmendment) Act2001 waschallenged ontheground that itviolated ofthe
concept ofequality underArticle 14~oneofthebasicstructure oftheIndian
Constitution.Though the consrittit'"ionalbench upheld the validity of the
amendment stating that these wereonlyenabling provisions, thecourtheld that
the ceiling limit of 50%, concept of creamy layer, the compelling reasonsnamely backwardness andinadequacy ofrepresentation andoverall
administrative efficiency areallconstitutional requirements without which
thestructure ofequality ofopportunity inArticle 14 willcollapse andthese
concepts aretobeobserved whilemaking individual laws.
Hence theconflict regarding the reservation in promotion is still in
progress. The Supreme Court while disposing Nagaraj'sCaseheldthattheStatewhile making lawsforreservation shallobserve theguide linesgiven inthis
case. Soitisyet tobe seenthat how the individual state laws are
goingtobedeltbythecourt.
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31
RESERVATION, EFFICIENCY
ANDRELAXATION
Itcanbeseenthatthecompensatory discriminationgiveninfavourofthe
Schedule CastIScheduleTribe, Socially andEducationally Classofcitizens
wasoftenattacked ontheground ofmeritocracy. Itisalways contented that,
giving opportunity to the less meritorious candidates on the ground of
reservation will dilute the efficiency inthe public service. Moreover the
meritorious studentsandcandidates willbedenied admission asaresult of
reservation intheeducational institutions andpublic employment. Thishas
~
leadtoawidedissatisfaction am.
o-
ngtheupper class. Ontheotherhand,the
opposition ofmeritarianideacontends that,itisalwaysthedominant group
which imposesitsnotions ofmerit,therefore themerittests maynotbethe real
indicators ofaperson's merit. They contendthat there cannot beany objective
criteria ofmerit. Theviews andthinking process ofaperson can beinfluenced
bythe cultural group towhich hebelongs. Itcannot besaid
thatoneviewissuperior totheotherbecause there isnoscientific objective
criteria of knowledge. Therefore, different views should be given
representation ininstitutions topromote diversity which ishealthy forsocial
andpolitical lifeofthecountry.
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31Indian constitution provides for merit inpublic service atthe same time
provides forrelaxation ofqualifying marksandstandards forSchedule Cast
andSchedule Tribe.ByConstitution (Eighty secondAmendment) Act,2000 a
proviso was inserted into Article 335 which reads as "Provided that
nothing inthis article shallprevent inmaking ofanyprovision infavor of the
members of the Schedule Cast and Schedule tribe for relaxation in
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32
qualifying marks inanyexamination orlowering ofstandards ofevaluation,
forreservation inmatter ofpromotion toanyclass orclasses ofservice or
postinconnection withtheaffairsofUnionorofaState."
Here wediscuss thejudicial view onquestion ofrelaxation given tothe
Schedule CastIScheduleTribe, SociallyandEducationally Classofcitizens.
InState ofKerala v.N.M. Thomas (A.I.R 176SC 490) under theKerala
StateandSubordinate Services Rules, 1950certain relaxation wasgivento
Scheduled CasteandScheduled Tribecandidates passing departmental tests
forpromotions. Forpromotion toupper division clerks fromlowerdivision
/
'
clerks thecriteria ofseniority-curfi-merit wasadopted. Duetorelaxation in
meritqualification in 1972,34outof51vacancies inupper division clerks went
to Scheduled Caste candidates. Itappeared that the 34 members of SC/ST
had become senior most inthe lower grade. Themajority heldthat the
relaxation of Rules which required a lower division clerk to pass a
departmental test with in a period of two years in the interest of the
employeesbelonging toScheduleCastandSchedule Tribewasnot
unconstitutional orillegal.
In Stateof Madhya Pradesh v. KumariNiveditaJain and Others,[
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(1981)4SCC296]theGovernment by anorder,removedtheminimum
qualification forSchedule CastandScheduleTribecandidates foradmission
tohemedical collages inMadhya Pradesh. Asaresult,thepetitioner losther
chance ofadmission, sincetheseatsnotfilledupbythe Schedule Castand
Schedule Tribe candidates would havegonetothegeneral merit candidates
asper Rule 9ofthe Rules forAdmission intothe Medical, Dentistry and
Ayurvedic Colleges in Madhya Pradesh. The petitionerchallenged the
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33
government orderasviolativeofArticle 14and 15oftheconstitution. High
Court allowedthepetition. Onappeal, the Supreme Court held that, inthe
absenceofanylawtothecontrary, it mustalsobeopentothegovernment to impose
suchconditions aswould makethereservation effective andwould benefit the
candidates belonging tothese categories forwhose benefit and welfare
thereservation havebeenmade. Suchrelaxation neithercanbesaid
tobeunreasonable, norconstitutes violation ofArticle 14or15.
InArtiGuptav.StateofPunjab, thePetitioners challenged theadmission to
Medical !DentalCollages. Asperthenotification acandidate hastoobtain
50%marks inentrance examinatieti' tosecure admission with anexception to
Schedule Cast and Schedule Tribe candidates who need to obtain only
35%marks. Sincethe seatsreserved forSchedule Castand Schedule Tribe
candidates werenotfilled,theGovernment madetheimpugned notification
reducing the qualifying marks from35%to25%.The SupremeCourt held
thatthe'Government iscompetent todosoandtheactionoftheGovernment
isnotarbitrary andfurther itisnothitbyRuleofEstoppel.
WHETHER RIGHTUNDER ARTICLE 15(4)&16(4)
FUNDAMENTAL RIGHT
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34
Everyprovision ofPartIII oftheIndianConstitution dosenotconfersa
fundamental right. Some ofthe provisions ofpart III arejust definitional,
others provide forthe effect ofthe fundamental rights onthe existing and
future laws, still others provide fortheenforcement andimplementation of the
fundamental rights, while some others provide exceptions to the
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34
fundamentalrights. Hence anair of doubt persists as to whether Article
15(4) and16(4) confer any fundamental right. The question of extent of
reservation is closely linked to the issue whether Article 16(4) is an
exception toArticle 16(1) orisArticle 16(4)anapplication ofArticle 16(1).
IfArticle 16(4)isanexception toArticle 16(1)then itneeds tobegiven a limited
application soasnottoeclipsethegeneral ruleinArticle 16(1).But ifitistaken
asanapplication toArticle 16(1),any amount ofreservation
couldbepermissible sinceitwould befurthering thegeneral ruleinArticle
16(1).
Article 15prohibits discretion onthe groundofreligion, race, casts, and
placeofbirth. Article 15(4)statesthat, "Nothing inthisarticle orinclause
(2)ofArticle 29shallprevent thestatefrom making anyspecialprovision for the
advancement of any socially or educationally backward class of citizens
orfor theschedule castortribe."
Article 16 providesfor equality of opportunity in public employment.
Article 16(4)statesthat, "Nothing inthisarticleshallprevent thestate from
making anyprovision for thereservation ofappointments orposts infavor
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ofany backward class ofcitizens which, intheopinion oftheState, isnot
adequately represented intheservice underthestate."
Onaplain reading one islikely to formthe impression that clause (4)of Article
15isan exception to the rest ofthe provisions ofthat article and clause
(2)ofArticle 29and clause (4)ofArticle 16isanexception tothe
restoftheprovisions ofthatarticle.
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35
Initially theSupreme Court was alsounder the same impression. InM.R.
Balajiv.State ofMysore A.I.R 1963SC649),theApex court wasofthe
viewthatArticle 15(4)and 16(4)wereonlyenabling provisions andtheydo
notconfer anyfundamental rights norimpose anyconstitutional duty.This
impression continueduntil four out of sevenjudges, Ray, CJ. ,Matthew,
Krishna Iyer, FazalAli, Jl., opined in N.M.Thomasv. state of
Kerala(A.I.R 176SC490) thatArticle 16(4)wasnotanexception to16(1)
andthat itwasmerely anemphatic wayofstating thatreservation wasone
ofthemodesofachieving equality for-thebackward classofcitizens..
_
/
Thisviewwasmore emphatically reiterated inA.B.S.K Sanghv.Union of
India.(AIR 1981SC298) ChinnapaReddy, J.observed that "Article 16(4)
isnotinthenature ofanexception toArticle 16(1).Itisafacettoofarticle
16(1)which fosters and furthers the idea of equality of opportunity with
special reference to an under privileged and deprived class of citizens to
whom egalitede droit (formal or legal equality) is not egalitede fait(practical orfactual equality).
This view has been finally accepted by the court in Indira Swahiniv. Union
ofIndia.
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36
Allthe abovementioned judicial views speak about theposition ofArticle
16(4)asafundamental rightbutnothing saidabout Article 15(4).Itcanbe
seenthat,theexception thesiswasindeed propounded inacaseconcerning clause
(4)ofArticle 15.Moreover Article15dosenothave anyprovision corresponding
to clause (1) of Article 16 which guarantees equality of
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36
opportunity inpositive terms. Sothere isareasonable doubt astowhether
thisratioisapplicable toArticle 15(4)also.
Logically, thesameinterpretation mustapplytoclause(4)ofArticle 15also.
RightunderArticle 15,asinterpreted inthecontext ofArticle 14,isnotthe
righttouniform orequaltreatment. Itistherightthatequals aretobetreated
equallyandnotunequals. Soeverydifference oftreatment cannot besaidas
inconsistent withrighttoequality. Onlythatdifference oftreatment whichis
basedonlackofequal concern willbeinconsistent withrighttoequality. It
isobvious fromthe expression '..di's~riminateagainst' inArticle 15thatthe
....
State is not prohibited from treating people differently on the basis of
religion, race, cast, sex or place of birth, instead it is prohibited from
discriminating thecitizens onthesegrounds. Allthese factorsequally apply
toArticle 16(4).Whenitisobserved bythecourtthatArticle 16(4)isnotan
exception toArticle 16(1)but afacettoit,we cannot look foradifferent
treatment forArticle 15(4).Hence Article15(4)isasmuch afundamental
rightasArticle 16(4).
STATUS OFVARIOUS CLASSES
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Indian constitution has afforded reservation to socially and educationally
backward class ofcitizens to ensure their upliftment. This effortfromthe
sideoftheGovernment haspaidtoagreatextend. Thenumber ofsocially and
educationally backward class of citizens in public employment has
increased asaresult andalsotheir educational qualifications aswellasthe
standards haveincreased. Thishasleadtosomeunhealthy practicesinorder
toavailthebenefits ofreservation. Itisinteresting toseethat somepeople
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37
have beentrying togetthebenefit accorded bylawtothemembers ofthe
Schedule Cast and Schedule Tribe bywayofchanging their casts through
conversation, reconversation, adoption, marriage, etc.
Conversatio
n
Thequestion astowhether aperson couldresorttochange ofcastbywayof
conversion andifsowhatistheimpactonhisstatushasbeendiscussed by thecourts
onseveral occasions. InKailas Sankarv.Maya Dei(AIR1984
SC600),theappellant's casewasthattherespondent whowasaChristian
-
".?/
/
bybirthcouldnotbetreated asSchedule castandtherefore herelection asa
member ofVidhanSabha fromaseatreserved forSchedule Castwastobe
declared as void. Here the respondent even though born as Christian to
Christian parents; her ancestors belonged to Kaliawhich was aschedule cast.
Here the question was, whether being born to Christian parents will restrict
the respondents from inheriting the cast to which her ancestors belonged
to.Thecourt opined that,"Where aperson belonging toschedule
castisconverted toChristianity orIslamthesame involves lossofthecast unless
thereligion towhich heisconverted isliberal enough topermit the
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37
converteestoretain the castorthefamily lawsbywhich hewasoriginally
governed. Where thereligion however dosesnot atallaccept orbelieve in
castsystemthelossofcastwouldbefinalandcomplete."
InSoosaiv.Union ofIndia (AIR1986SC733)thepetitioner converted to
Christianity from Adi-Dravidacommunity. In 1982the Tamil Nadu khadi
Village Industries Board allotted freebunkstothecobblers inthatarea.The
petitioner was sidelinedon the ground of his conversion. The petitioner
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38
challengedtheGovernment Orderwhichwasmadeinconsonance to the
Constitution (SC)Order 1950which excluded persons whoprofess religionotherthanHinduism andSikhismfromavailingthebenefits of reservation as
violativeofarticle 14,15and25.Herethecourtdismissed thecontentions of
thepetitioner statingthattheprovisions intheConstitution (SC)Order 1950
isnotarbitrary sincethecastoppression isapartoftheHindu systemandit is not
sufficiently shown that the same disabilities and handicaps is not
sufferedwithinthenewly converted religion.
TheSupreme CourtinState ofKerala v.Chandramohan(2004 (1)KLT
.
1101(SC), whileconsidering tliequestion whether aperson onconversion
toanotherreligion could continue toremain amember ofthattribeheldthat
itwasaquestion offact andthemember ofthetribe despite hischange in
thereligion mayremain ofthattribeifhecontinues tofollowthetribaltraits
andcustoms.
Reconversatio
n
Asregardtothestatus ofreconverts, theSupreme Court inKailas Sankar
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v.Maya Dei (AIR 1984 SC 600), was ofthe view that "The reconverts
mustexhibit aclearandgenuine intention togobacktohisoldfoldandopt
thecustom andpractice ofthesaidfoldwithout anyprotest frommembers ofhis
erstwhile cast, inorder tojudge this factor, itisnot necessary that
thereshouldbeadirectorconclusive period oftheexpression oftheviewofthecommunity oftheerstwhile castanditwontbesufficient compliance of this
condition if the exception or protest is lodged by the community
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39
member in which case the cast would revive on the reconversion ofthe
persontohisoldreligion."
InSoosaiv.Union ofIndia (AIR 1986SC733), the Supreme Court held
thecircular issuedbyGovernment ofTamilNaduto
Tamil Nadu Public Service Commission canceling the appointments of
converts who reconverted to Hinduism for getting into service and later
converted tootherreligion asvalid.
Marriag
e
The practiceof inter cast and inter religion marnagesraised another
question before thejudiciary. Thequestion whetheramember oftheupper
castcouldbecome amember ofschedule castorschedule tribebymarrying
amemberofthelattergroups.
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InValsammaPaul v.CUSAT, (1996 (1)KLT169(SC)aforward caste
ladyhad married abackward caste man. Shewas not given the benefit of
reservation because shecould notbeconsidered backward aftertaking into
account her upbringing. The Supreme Court examined the issue in the
constitutional perspective and ruled that aperson getting into afamily of
Schedule cast or other backward communities by marriage may not be
entitled toreservation. Court heldthat"when amember istransplanted into the
Dalits, tribes and OBCs, he/she must of necessity undergo some
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40
handicaps, be subject to same disabilities, disadvantages, indignities or
sufferings so as the candidate to avail the facilities of reservation. A
candidate whohadtheadvantageous startinlifebeing born inforward cast
andhadmarch ofadvantageous lifebutistransplanted inbackward castby
adoption ormarriage orconversion, dosenotbecome eligible tothebenefit of
reservation either under Article 15(4) or 16(4) as the case may be.
Acquisition of thestatus of schedule cast etc. by voluntary mobility into
these categories would play fraud on the Constitution and frustrate the
benign constitutional policyunderArticle 15(4)and 16(4).
InShobaHymavathiDeviv.SettiGangadharaSwami [(2005)2 see
244] theSupreme Court was dealing with the question of election to
Legislative Assembly. Theappellant claimedeligibility toelection fromseat
reserved for Schedule Tribe. The court held that the benefit would be
available onlytothosewhobelong toschedule cast/schedule tribeandnotto
otherswhoclaimtoacquirethestatusbymarriage.
Another importantquestion isregarding theposition ofoffspring's ofinter
castmarriage. Weretheyentitled toavailthebenefits ofreservation when
oneoftheir parents belonged tothe schedule cast/schedule tribe? Herewe
shallexaminethestatusofoffspring's ofintercastmarriage.
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Thepower tospecify anycast,raceortribes orparts oforgroupswithin
cast,raceortribeswhich shallforthepurpose oftheconstitution bedeemed to be
schedule cast/ schedule tribe, isvested inthe President interms of Article
341(1) and 342ofIndian Constitution. Even bythis process, either the
President orthe Parliament dose not determine the cast ofagroup of
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41
persons, butonly specifies acast,race,tribe orgroup orpartthere thereof.
Initially thisdidnotposemuchproblems forthecourtsprobably because of the
firm stand of the executive have taken in extending the benefits of
reservation to the children of inter-cast marriage if one of the parents
belonged to aschedule cast or schedule tribe. But thisexecutive fiatwas
something done beyond itspowers. There isno legislative competence for
theStategovernment todosointhelightofArticle 341and342.
Earlier, withaview to encourage inter cast marriage, children born in
"
inter castmarriage were give..- all benefitsof schedule cast and schedule
tribe ifone oftheir parents belonged toschedule cast orschedule tribe. It was
JusticeK.G.Balakrishnanin Bijumonv. Comissionerfor Entrance
Examination (1993 (2)KLT 1074)whodiffered onthisviewandobserved
thatthemembers ofthecastspecified inthePresidential notification alone
areentitled tobetreated asschedule castandthat the parliament alone is
giventhepowertoexclude anycastfromthePresidential notification.
Later athree Judge bench ofSupreme Court inPunithRaiv.Dinesh
Choudary[(2003) 8 SCC204]considered the scope of Article 341(1) of
Constitution ofIndia and the circular issued bythe Bihar Government in
connection with the acceptance ofnomination tothereserved constituency of
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the legislative Assembly. In this case, Dinesh Chudary, the returned
candidate wasanoffspring ofanintercastmarriage whose fatherbelonged to
Kurmicast(OBC)andmotherbelonged toPaisi(SC).ThePatnaHighCourt found
himtobe amember of schedule cast. Supreme Courtset aside the decision
oftheHigh Court andheldthatthecastofanoffspring ofaninter
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42
cast married couple shall be determined based on the cast of its father.
S.B.SinhaJ., inhis concurring judgment observed that "Determination of
cast of a person is governed by the customary laws. A person under
customary Hindu lawwould beinheriting thecastfromhisfather. Thecast
ofthefatherwillbethedeterminative factor.Ifcustomary lawistobegiven a go-by
for any purpose whatsoever and particularly for the purpose of enlarging
the scope ofanotification issued bythePresident ofIndiaunder Clause(1)
ofArticle 341oftheConstitution ofIndia,thesamemustbedone intermsofastatute
andnototherwise."
Therefore, if fatherbelongs to schedule cast/schedule tribe the child
wouldinheritthecastofhisfatherbyoperation ofthepersonal law.Ithasto
befurther establishedthatthechild stillusesthecastofthefather withthe same
disabilities, disadvantages and, sufferings. If the mother belongs to
schedule cast/schedule tribe and father not being schedule cast/schedule
tribe, the claimant has to prove that he has been brought up as schedule
cast/schedule tribe either by father or by mother and has suffered all
handicaps anddisadvantages ashaving beenborn asamember ofschedule
cast/schedule tribe.Heretheburden ofproving thesefactsisontheclaimant
himself.
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43
CONCLUSION
TheIndianConstitution isasocialdocument. Ithasbeenframedwithcertain
objectives. Social transformationandformation ofanegalitarian society is one
among them. The Indian Constitution recognisesthe presence of
continuous traditionaldiscrimination against certain classes and envisages
measures toendthem. Hence theIndian Constitution adopts the theory of
affirmative actions andreservations. TheConstitution clearlyrecognisesthat
thereare castes and classes which are in need of special support and
"
protection and the dream of apegalitarian society will remain unfulfilled
unless these classes are brought inthe mainstream ofthe society through
various measures. Reservation under Article15(4)and 16(4) are afewof
suchmeasures adopted bytheIndianConstitution.
It~as theLegislature whotooktheleading roletowards theattainment
ofthisobject.TheroleoftheJudiciary wasnotverypositive initially. Inthe
earlydaysoftheIndian Constitution, theJudiciary wasmorekeentowards
implementing thefundamental rightsthereby theconstitutional objectofthe
social reformation had some major set back. The swift action by the
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Legislature to mitigate the damage done by thejudiciary in
ChampakamDoorairajan'sCaseisaninstance ofthis.
However the Judiciaryhas played an important role in shaping the
concept ofreservation. The mostimportant was the reservation inservice and
promotion. When majorityofthe population of India was backward
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44
such aprovision was necessary in order to ensure that services are not
monopolisedbyasmallsection ofthepopulation. Itwasadopted asameans
topush upthebackward sections ofthepopulation andtobring them into the
mainstream of Indian life. Here the courts made an important
observation thatthe community availing reservation inpromotion shallnot
have adequate representation ingovernment service. Another majorissuewasregarding theidentification ofBackward Class.TheIndian Constitution
recognisescertain group identities. The backwardness in India was
,.
attributable tothese groups wh.i-eh''areotherwise the cast. Here thejudicial
vieweventhough notconsistent wasthatthebackward classwillconsist of those
castsifmajority oftheindividuals ofacommunity hasundergone the disability.
Hence the dispute as to the question of class or cast as the determinant
factorisanongoingdebate.
Theconcept ofcreamy layerhasensuredthatitisactually thebackwardsection of the reserved category population which gets the benefit of
reservation. The intention behind this concept was to protect those
individuals inthebackward community whomaybeleftbackward oncethe
individuals ofthatgroup areadvanced. Those advancedindividuals become
apartofthecreamy layerofthatgroup andhence theyareputintogeneral category
andceasetobepartofthegroupforthepurpose ofreservation. To thequestion
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44
whether thereserved category candidates wereeligible foropen merit seats, the
Judiciary had apositive view that the reserved category candidates
cancompete forgeneral category posts. Andiftheygetselected
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inopencompetition their selection willnotbecounted against thereserved
categoryposts.
When we go through the issue of reservation, it can be seen that the
Legislature wasmore active compared tojudiciary inadvancing the social
welfare measures. But attimes the legislative enthusiasm has affected the
equilibrium between the backward communities and the rest due to
excessive reservation. Thus thequestion ofextend ofreservation hasbeen
/"
frequentlyraised before the-v'courts. The judiciary has made timely
interventions tosettletheequilibrium. Theprinciple of50%reservation has
beenevolved asaresult ofthis.
Another importantdispute wasoverthestatusofArticle 15(4)and 16(4)
...
asfundamental right. The courtshave time and again observed that these
rights form part of fundamental rights and they cannot be termed as an
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exception clause. In this context, itisinteresting tonotethat, sofarArticle
15(4)and 16(4)havebeeninvoked beforethecourtsonlytochallenge State
actions onlyandnot anyinaction. Noinstance isavailable where someone
approached thecourttoenforcetheserights.Oneofthereasons forthismay be the
fact that the State has not failed in discharging its obligation in
implementing the social welfare measures. However itisahard truth that,
whenever a State action has happened in implementing the rights under
Article 15(4)and 16(4), ithas been challenged onthe ground ofequality,
efficiency andmerit.
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Hence it can be concluded that Article 15(4) and 16(4) are the cardinal
provisions in the Indian Constitution for the formation of an egalitarian
societyandtowards theattainment ofthemuchcherished socialreformation.
Soitisimportant thatthese policies arecarried onwithLegislative actions
andJudicial interpretations tilltheseobjectives areattained.
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