DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

FINAL DRAFT

Legal Research and Writing

TOPIC:Reservation under Indian Constitution

Under Supervision of: Submitted by:

Ms. Shakuntala Sangam Sudhanshu Kumar Viplava

Assistant Professor of Law Roll No.135 (Section B)

Dr. RMLNLU B.A. L.L.B. (Hons.)

Sem-VII

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TABLE OF CONTENTS Page No.

ACKNOWLEDGEMENT 3

SYNOPSIS 4

INTRODUCTION 6

DOCTRINAL AND NON DOCTRINAL RESEARCH 9

THE RATIONALE OF THE PRESENT RESERVATION SYSTEM: 9

BACKGROUND: 11

EMPIRICAL RESEARCH FINDINGS OF THE MANDAL COMMISION

REPORT: 13

OBSERVATIONS AND FINDINGS RECOMMENDATIONS: QUANTUM

AND SCHEME OF RESERVATIONS: 15

CRITICISM OF EMPIRICAL DATA APPROACH OF GIVING

RESERVATION BY MANDAL COMMISSION: 17

CONSTITUTIONAL MANDATE: 18

RESERVATION FOR BACKWARD CLASSES IN INDIA:

20

CENT PERCENT RESERVATION NOT PERMISSIBLE: 23

EXTENT OF RESERVATION CONCEPT OF CREAMY LAYER: 24

CONCLUSION 25

BIBLIOGRAPHY 26

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Acknowledgment

It is not a ritual but a heartfelt feeling that I wish to express my gratitude. In writing

this research project, I am indebted to many in the course of this research project.

Much of the data deployed here has been taken from the Dr. Madhu Limaye Library,

Dr. Ram Manohar Lohiya National Law University.

I am also thankful to Ms Shakuntala Sangam (Assistant Professor, Dr. Ram Manohar

Lohiya National Law University) who believed in me for doing this project. This

project would have been impossible without her guidance and valuable suggestions.

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Objective of the Project: The objective of the project is to throw light upon the

provision of reservation provided under Indian Constitution on the basis of social,economic

and educational backwardness which was ascertained empirically in various reports and

commissions.Mandal commission being one of the most crucial amongst them, in its report

carved ot a new set of backwards in the Indian society which came to be known as Other

Backward Classes.

Research Methodology: The methodology in this research study is not one-

dimensional. It is rather host of historical, theoretical,empirical and analytical.

Sources of data:The data is collected from primary as well as secondary sources. Book,

Journals and Magazines available in library is the main source.

Research Questionaire:The researcher through this project will try to find out

answers to following questions:

What does the Indian Constitution have to say in regard to reservations?

What is the empirical basis of granting reservation to particular castes?

Is the criteria for determining backwardness given under Indian Constitution justified?

What is theoretical approach behind reservation policy?

Hypothesis:

Reservations cannot take the place of comprehensive societal changes, but they constitute a

very important, necessary step in the process of compensating for centuries of discrimination.

Reservations promote integration in the upper strata of society — by increasing the access of

highly disadvantaged and under-represented communities to elite occupations and decision

making positions. In this manner, reservations result in greater empowerment of hitherto

disadvantaged communities.

A study on the impact of three decades of reservations in higher education for the SC/ST

community in India1 shows that “reservation policies at all levels of higher education both

1 Thomas E. WeissKopf, “Impact of Reservations on Higher Education in India”http://www.epw.org.in/showArticles.php?root=2004&leaf=09&filename=7728&filetype=html

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redistribute SC and ST students upward in the university quality hierarchy and attract into

universities significant numbers of SC and ST students who would not otherwise pursue

higher education.” This study also found that while such reservations were mostly availed of

by the more well-off section of the SC/ST population, this was not surprising due to the

immense challenges faced by the poorest of the poor in persisting through school in order to

reach higher education. In addition, the average socio-economic status of the SC/ST students

was significantly lower than that of other students, thus suggesting that reservation policy did

not benefit well-off SC/ST students at the expense of less-well-off applicants from the rest of

the population.

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Introduction:

The framers of the Indian Constitution, emphasized upon certain aspects like Secularism,

Integrity, Freedom and Equality. According to the Indian Constitution, there should be

Equality on the basis of caste, religion, sex and so on. It is must for all the residents of the

country to abide by these rules and regulations and make sure equality is maintained in all

aspects. Such matters not only include right to knowledge, education, religion but also other

areas like employment opportunities and benefits. It is clearly stated in Article 16(1) of the

Indian Constitution, that “There shall be equality of opportunity for all citizens in matters

relating to employment or appointment to any office under the State”. Introduction of such

clauses provided security to all the citizens of the country irrespective of their religion, caste

and sex and also helped in inspiring people to opt for the right path to lead life that would

instigate honesty and fair practices throughout the country. Hence, the concept of “Equality”

evolved.

The time when the Indian Constitution was made, India was going through a very rough

phase and was extremely sensitive in several areas. One such area includes the

underdeveloped people like the women and children and the Schedule castes and tribes,

whose conditions were very vulnerable and needed immediate security. Thus, to help these

backward people the Government made certain amendments so that these weaker sections of

the society can come up at par with the more developed part of the society. One of such

amendments was the introduction of Article 16(4) in the Indian Constitution, which states

that equality of opportunity for all citizens in matters relating to employment or appointment

to any office under the State. But it is also mentioned that, “Nothing in this Article shall

prevent the State from making any provisions for the reservation of appointments or posts in

favour of any backward class of citizens, which in the opinion of the State, is not adequately

represented in the services under the State”.

With the increasing democratization of governments, the fundamental problem has been to

pull down the barriers of segregation and to offer equal opportunities to all. The aim of

democracy has everywhere been to eliminate “Man made socially fostered, discrimination

that has enlarged for some and has restricted for others’ avenues that lead to education,

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income and advancement.” However, this doesn’t mean a refusal to recognize the natural

differences in character and intellect.

So far as the Ancient Indian Culture and Civilization is concerned, the Vedas and Smritis

speak highly of equality and brotherhood- ‘Vasudhaiva Kutumbakam’ (One World One

Family). “The entire world is a family” was the motto of Vedic civilization. All had equal

opportunity in all walks of life in ancient India. The Vedic age was more liberal in providing

equal status to the people. Buddhism, Jainism, Shaivism, Vaishnavism, Sikhism and other

indigenous Indian religions also preach the principles of brotherhood and equality.

The constitution of India guarantees equality, including sexual, to everyone(Articles 14 &

15). All laws which are inconsistent with the Fundamental Rights enshrined in the

Constitution are void (Article 13). Yet religious personal laws that discriminate against

women are still valid, not void, even after four decades after the adoption of the Constitution.

The State has not adopted a consistent policy with regard to reform of religious personal

laws.  The British and the successive Congress governments have extensively reformed the

supposed Hindu personal law in order to give equal right to Hindu men and women. The

personal laws of the so-called minorities are left virtually untouched, ostensibly because the

leaders of these communities claim that their religious laws are inviolate. The present

situation is that the women of the minority communities like Muslims continue to have

unequal legal rights, thus resulting in gross practice of sexual discrimination.

Presently the movement of women into employment, which came at a later date in India than

in many western countries, have experienced seeing Indian women move successfully into

high positions in every possible field. This kind of movement brings in a variety of new

problems, such as sexual harassment at work places, problems of ego and so on. These

problems must be dealt with by institutions, i.e., laws against discrimination are to be

enforced by the institutions.

On the other hand we find that almost for the last two decades there is an overwhelming

majority in the nation that is still backward – socially, economically, educationally, and

politically. From the above problems the framers of the Constitution of India felt it right to

provide some special protection to the insecure and weaker parts of the society and hence

evolved the concept of “Protective Discrimination”. In the case of Indira Swahney v Union

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of India2 also known as the Mandal Commission Case, for the first time the Indian Legal

system took a valid step to substantially protect the minorities and under-privileged people by

giving a very reasonable judgement. The Supreme Court of India laid down that socially

advanced members of the backward class, the “Creamy layer”, has to be excluded from the

backward class and the benefits of reservation under Article 16(4) which is only valid to a

class which remains after the exclusion of the “Creamy layer”. But in the 77th Amendment

to the Constitution reservation in promotion to the Scheduled Castes and Scheduled Tribes

has been permitted. Thus, by amending the Constitution, the Parliament has removed the base

as interpreted by Supreme Court in Indira Sawhney that the appointment does not include

promotion.

In the case of India, the reservation policy has been adopted for alleviating inequalities in the

political and economic scenarios.3 This is a method of achieving substantive equality. India

has a pluralistic society and the main forms of discrimination are caste and religion. India

being a male dominated society, sex is also an important basis for inequity. The constitution

swears to not discriminate on any of these grounds and hence we have a reservation policy

for the protection of the interests of all discriminated groups. The problem arises in targeting

this group and meeting the ends for which reservation is created. In law, there are two

principles that have to be complied with before legislating it. First, there should be a rationale

for creating the said law and second, there should be nexus between the law and the goal

sought to be achieved. The rationale has been justified time and again by our legislators and

people have come to terms with the fact that there is no other way to subdue discrimination

than reservations. But is there a direct link between the provisions of this policy and the

ultimate goal of equality? The answer to this question keeps changing from time to time and

that is what we are trying to analyze in this paper.

The minorities in India started getting recognized by law through the provision of communal

electorates. This was seen as one of the reasons for the partition of India and Pakistan, but

from the viewpoint of equality, this was one of the first efforts to bring about political

equality and avoid discrimination against minority communities. The reservation policy in the

basis of caste started when the Simon Commission came to India with the rule of separate

electorates and reservations for depressed classes. But a concrete legislation was passed only

2 1992 Supp (3) SCC 2123 Basu, Durga Das (2008). Introduction to the Constitution of India. Nagpur: LexisNexis Butterworths Wadhwa. p. 98.

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later on after independence when Dr. B.R. Ambedkar fought for the rights of the SC’s, ST’S

and OBC’s. During the constitutional assembly debates, he supported the cause of backward

castes time and again and believed that reservation policy is the only way to eradicate these

disparities. However, the reservation policy was always a provisional one and not permanent.

For years now, the time limit has been increasing as the government did not feel that the

required amount of equality has been achieved in the social, economic or political life of

people.

Doctrinal and Non Doctrinal Research

Doctrinal Research is concerned with legal prepositions and doctrines. whereas non doctrinal

research is concerned with people, social values and social institutions. in case of doctrinal

research the sources of data are legal and appellate court decisions whereas in the other case

the sources of data are less and mostly new techniques have to be used. doctrinal research is

not concerned with people but documents whereas in case of non doctrinal more importance

is given to the society and people. the scope of doctrinal research is narrower as compared to

non doctrinal since it studies about what the doctrine or the authority says yet more

encouragement is given to doctrinal type of research than the non doctrinal. there is no

requirement of imparting training for collection and use of sources whereas training is needed

to use new techniques in the non doctrinal research. in case of doctrinal field work is not

needed library is sufficient whereas in non doctrinal research the field work is most important

ingredient.

Although Reservation policy is a doctrine well established now in India,its roots lies in all the

data and findings of various commissions and committees who have put their efforts to

collect empirical data so as to determine the real situation in society and to recognise those

who are backward on all the parameters and those who need some kind of affirmative action

to give them the proper and adequate representation in the Indian political system.This is the

reason why both the pro-reservationists and the anti-reservationists either try to support the

empirical data findings of such reports or try to contradict them.

THE RATIONALE OF THE PRESENT RESERVATION

SYSTEM:

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Empirical research leading to doctrinal work of affirmative action via reservation:

"It is against the fundamental principles of humanity, it is against the dictates of reason that

a man should, by reason of birth, be denied or given extra privileges" -Mahatma Gandhi

Reservation as we see it today, was not what the dalits of India wanted. The Simon

Commission had agreed to the "Separate Electorate" demand of Dr. Ambedkar.4 Mahatma

Gandhi in protest decided to fast unto death because he was of the view, that this will create

further divisions between the untouchables and upper caste Hindus.

Reservation was agreed upon by Dr. Ambedkar in the Poona Pact.5 Critics of the Mandal

Commission argue that it is unfair to accord people special privileges on the basis of caste,

even in order to redress traditional caste discrimination.Reservation policy has its avowed

objective of the amelioration of BCs who were the victitn of the prevalent caste sytem: a feature

unique to the Indian social mileu. It is generally understood as involving three aspects-positive

discrimination, reverse discrimination and compensatory discrimination. Positive discrimination

involves providing special treatment to those who are susceptible to exploitation. Reverse

discrimination is a sort of vindictive measure, which in other words means discrimination against

those who had discriminated a particular class for decades.

Compensatory discrimination involved adoption of rneasures to safeguard the interests of

historically disadvantaged sections of people.

Reservation6 was introduced to bring an equality in between the Upper , Middle and Lower

class societies by upgrading the standard of Living , Literacy and Posts of Lower and

Backward considered classes . The word “reservation” has attained a particular legal

significance in matters relating to public employment. The concept is founded on separating

individuals or groups having certain characteristics (pertaining to backwardness as per

Articles 15(4) & 16(4)) from the general category of candidates and conferring on them the

benefit of special treatment. It is discrimination made in favour of the backward classes vis-

à-vis the citizens in general and has been referred to as ‘Compensatory discrimination’ or

‘Positive Discrimination’.

4 Babasaheb Ambadekar : writings and speeches ,vol.v.p.92.)

5 Mandal, Jagadis C. Poona Pact and Depressed Classes. Calcutta: Sujan Publications, 1999.

6 Dharma Kumar. The Affirmative Action Debate in India. Asian Survey, 32:290–302, 1992.

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The question we need to ask is if the present reservation system is a true reflection of the

altruistic persuasions of the legislators or that of their political interests and/or political

pressures. The truth is that inequality is prevalent everywhere in different forms. The

constitution only provides for or recognizes a part of them. For example, disability is also

grounds for discrimination. However, the limited reservations made for them are never

objected or extended. In public sector, 3% is the reservation for disabled persons where as it

is 27% for OBC’s when in fact; the percentage of disabled people in India is more than the

percentage of OBC’s. Why is this so? Law is subject to the interpretation of the courts and

the dynamic nature of law finds its sanction in the opinion of the judiciary. But, courts

regularly deal with cases regarding reservations for SC/ST’s or OBC’s or women, and not for

the disabled. Does the meaning of equality change in every context? To provide “equal

opportunities” to the oppressed classes means, to help them acquire their maximum potential-

not to make things easier for them. This is a lesson one should learn from the history of

independent India.

The other issue under the system of reservations is that of the creamy layer. The distance that

we have travelled after enacting reservations has eliminated certain disparities. Caste no

longer can be the sole criterion for detecting socially backward classes because some of them

have achieved economic status, thereby finding a social standing as well. Thus, in the Mandal

commission case, the court has observed that this particular strata of the society which they

termed as the “creamy layer” should be eliminated from such reservation policies as it is

hampering the goal of the provision. However, what goes beyond my comprehension is that if

a creamy layer exists despite being a socially backward class, maybe the objective is

achieved. The law has different reasoning to support this policy from time to time but how

would we identify the situation where the “goal” is truly reached. Waiting for absolute

equality is not practical as it is only a utopist situation. Meanwhile resistance is offered by the

classes which are not socially backward, also for the reason of discrimination. In such a

situation what kind of help is the government providing with the reservation scheme? This is

the dilemma that is struck the entire policy down.

BACKGROUND:

On November 25, 1949, Dr BR Ambedkar sounded a grave warning in the Constituent

Assembly: "On January 26, 1950, we will have equality in politics and inequality in social

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and economic life. We must remove this contradiction at the earliest moment, or else those

who suffer from inequality will blow up the structure of political democracy which this

Assembly has so laboriously built up.7" To guard against such an explosion of discontent, the

Preamble of the Constitution clearly spells out the objectives of securing "to all its citizens

JUSTICE, social, economic and political" as well as "EQUALITY of status and of

opportunity."

In 1950, the year in which the Constitution came into operation, one Champakam Dorairajan,

a Brahmin candidate, filed a petition for issuance of a Writ of mandamus restraining the (then

composite) state of Madras from enforcing a communal Government Order that provided for

reservation in electoral constituencies. A full bench of the Madras High Court upheld the

petitioner's plea. The state appealed in the Supreme Court. A seven-judge bench dismissed

the appeal. State of Madras v. Champakam Dorairajan8 is a landmark decision of the

Supreme Court of India.It was this judgment that necessitated the Constitution First

Amendment, which added Clause (4) to Article 15. The Supreme Court, in its 16 November

1992 judgment in the Indra Sawhney case, ruled that reservations in promotions are

unconstitutional, but allowed its continuation for 5 years as a special case. In 1995, 77th

amendment to the Constitution was made to insert clause (4A) to Article 16 before the five-

year period expired to continue with reservations for SC/STs in promotions. Clause (4A) was

further modified through the 85th amendment in order to give the benefit of consequential

seniority to SC/ST candidates promoted by reservation.

The 81st amendment was made to the Constitution that inserted clause (4B) in Article 16 to

permit the government to treat the backlog of reserved vacancies as a separate and distinct

group, to which the limit of 50 percent ceiling on reservation may not apply. The 82nd

amendment inserted a provison in Article 335 to enable states to give concessions to SC/ST

candidates in promotion.

The validity of all the above four amendments i.e. 77th, 81st, 82nd and 85th was challenged

in the Supreme Court through various petitions clubbed together in M Nagaraj & Others vs.

Union of India & Others9, mainly on the ground that these altered the Basic Structure of the

Constitution.

7 Babasaheb Ambadekar : writings and speeches ,vol.v.p.92.)

8 AIR 1951 SC 2269 2006(8 )SCC212

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On 19 October 2006, the Supreme Court upheld these four amendments but stipulated that

the concerned state will have to show, in each case, the existence of compelling reasons

which include backwardness, inadequacy of representation and overall administrative

efficiency, before making provisions for reservation. The court further held that these

provisions are merely enabling provisions. If a state government wishes to make provisions

for reservation to SC/STs in promotion, the state has to collect quantifiable data showing

backwardness of the class and inadequacy of representation of that class.

The central government appointed the first BCs commission under the chairmanship of Kaka

Kalelkar on 29 January 1953. It submitted its report on 31 March 1955. On the basis of

criteria evolved by it, the commission listed 2339 castes as socially and educationally

backward. T'he second BCs Commission was appointed under the chairmanship of B.P

Mandal10 on 1st January 1979. The commission submitted its report on 31st December 1980.

In its findings it found that the SC and ST constituted 22.5% of the population and the OBCs

52%. Thus in accordance with the principles of justice 52% of the posts under central

government should be reserved for them. But since thc Supreme Court has firmly laid down

that reservation should be restricted to 50% the commission recommended that total

reservations should he 49.5% i.e .27% for the OBCs and 22.5% for SC and Scheduled

Tribes. The Comrnission also rccommended that reservations should extend even to the

private sector which is aided by the central government. The V.P. Singh govt. accepted the

recommendations with a minor modification on 7August 1990 after a span of nearly ten

years since the commission had submittcd its report, The government decided that candidates

belonging to socially and educationally backward castes recruited on the basis of merit in an

open competition on the same standards prescribed for the general candidates shall not be

adjusted against the reservation of 27 percent. This was quite contrary to the

recommendations of the commission which stated that it shall be adjusted against the

reservation of 27 percent.

Empirical Research findings of the Mandal Commision Report:

Criteria to identify OBC11

10 B.P. Mandal. The Mandal Commission Report, 1980.

11 See Mandal Commission Report on http://www.ncbc.nic.in/User_Panel/UserView.aspx?TypeID=1161

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The Mandal Commission adopted various methods and techniques to collect the necessary

data and evidence. The commission adopted 11 criteria which could be grouped under three

major headings : social, educational and economic in order to identify OBCs.

Social

(i) Castes/classes considered as socially backward by others.

(ii) Castes/classes which mainly depend on manual labour for their livelihood.

(iii) Castes/classes where at least 25 per cent females and 10 per cent males above the

state average get married at an age below 17 years in rural areas and at least 10 per cent

females and 5 per cent males do so in urban areas.

(iv) Castes/classes where participation of females in work is at least 25 per cent above the

state average.

Educational

(v) Castes/classes where the number of children in the age group of 5–15 years who never

attended school is at least 25 per cent above the state average.

(vi) Castes/classes where the rate of student drop-out in the age group of 5–15 years is at

least 25 percent above the state average.

(vii) Castes/classes amongst whom the proportion of matriculates is at least 25 per cent

below the state average.

Economic

(viii) Castes/classes where the average value of family assets is at least 25 per cent below

the state average.

(ix) Castes/classes where the number of families living in kuccha houses is at least 25 per

cent above the state average.

(x) Castes/classes where the source of drinking water is beyond half a kilometer for more

than 50 percent of the households.

(xi) Castes/classes where the number of households having taken consumption loans is at

least 25 percent above the state average.

Also known as "Creamy layer," this criteria of separation is ignored by the government which

is known as the most controversial issue of reservation.

Weighting indicators

As the above three groups are not of equal importance for the purpose, separate weightage

was given to indicators in each group. All the Social indicators were given a weightage of 3

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points each, educational indicators were given a weightage of 2 points each and economic

indicators were given a weightage of 1 point each. Economic, in addition to Social and

Educational Indicators, were considered important as they directly flowed from social and

educational backwardness. This also helped to highlight the fact that socially and

educationally backward classes are economically backward also.

It will be seen from the values given to each indicator, the total score adds up to 22. All these

11 indicators were applied to all the castes covered by the survey for a particular state. As a

result of this application, all castes which had a score of 50 % (i.e. 11 points) were listed as

socially and educationally backward and the rest were treated as 'advanced'.

Observations and Findings

The commission estimated that 54% of the total population (excluding SCs and STs),

belonging to 3,743 different castes and communities were ‘backward’. Figures of caste-wise

population are not available beyond. So the commission used 1931 census data to calculate

the number of OBCs. The population of Hindu OBCs was derived by subtracting from the

total population of Hindus, the population of SC and ST and that of forward Hindu castes and

communities, and it worked out to be 52 per cent. Assuming that roughly the proportion of

OBCs amongst non-Hindus was of the same order as amongst the Hindus, population of

non-Hindu OBCs was also considered as 52 percent.

Recommendations:

Again, the controversy over the Commission's recommendations is very deliberately, I

believe, being centred exclusively on the scheme of reservations in jobs and seats in

educational institutions for the OBCs. The commission, following the Supreme Court

injunction that overall reservation should not exceed 50%, has in fact proposed only 27%

reservation - 27% for people who constitute 52% of the population. After the Mandal scheme

is accepted would this be 49.5%, within the limits drawn by the Supreme Court. It is well

worth noting that the OBC and SC/ST together constitute 74.5% of the population.

When 5% reservation of jobs and educational seats is given for people constituting nearly

75% of the population, is it condemned as casteist. But Those who constitute less than 25%

grab 75% of power - and that is supposed to be in the national interest, etc. Brahminst who

are 5% of the population enjoy 50% representation in the Union Cabinet, in Secretariat

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positions, in Governors' and Vice-Chancellors' and ambassadorial jobs, that does not raise

even an eyebrow of the so-called casteless society wallahas! 'Caste' cannot be used to deny

social justice to a vast majority of the people; neither can caste be allowed to be sued to

maintain privileges and positions grabbed and retained by a microscopic minority for

thousands of years. The double standards by which the not-so-concealed casteism of the high

caste is considered acceptable and respectable, while, 'caste', which has condemned the lower

castes, the backwards, the dalits, the adivasis to a life of poverty, exploitation, injustice and

humiliation is not be reckoned with, is a thoroughly discreditable posture and can deceive

nobody. The struggle against caste cannot be side-tracked to perpetuate the domination of the

higher caste. The struggle against caste is the most intense from of class-struggle in the

Indian situation.

But the main thing is that besides reservations, the Mandal Commission has recommended

certain structural changes. The Commission has broken fresh grounds and has carried out its

investigations into the conditions of the backward sections among Muslims and Christians,

thus transgressing religious divisions. So far, only Hindu dalits or OBC commanded

attention, but the oppressed and the backward among non-Hindus were not given

consideration. The Commission has shown, with substantive evidence, how backwardness-

social and educational-prevails even among religious communities which avowedly do not

believe in caste. They believe in the equality of man. Yet there exist divisions of 'high' and

'low'. These 'low-castes' among Muslims and Christians are derived from their Hindu origins,

but perpetuated after conversions, though a long time ago, and are parallel to similar Hindu

castes.

The Mandal Commission recommendations for Hindu OBCs are applicable to non-Hindu

OBCs also, thus the struggle for the recommendations of the Mandal Commission can unite

all the exploited and oppressed masses irrespective of religious divisions.

Quantum and Scheme of Reservations:

Scheduled Castes and Scheduled Tribes constitute 22.5% of the country’s population.

Accordingly, a pro-rata reservation of 22.5% has been made for them in all services and

public sector undertakings under the Central Government. In the States also, reservation for

SCs and STs is directly proportional to their population in each State.As stated in the last

Chapter the population of OBCs, both Hindu and non-Hindu, is around 52% of the total

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population of India. Accordingly 52% of all post under the Central Government should be

reserved for them, but this provision may go against the law laid down in a number of

Supreme Court judgments wherein it has been held that the total quantum of reservations

under Articles 15(4) and 16(4) of the Constitution should be below 50%. In view of this the

proposed reservation for OBCs would have to be pegged at a figure which, when added to

22.5% of SCs and STs, remain below 50%. In view of this legal constrain, the commission is

obliged to recommend a reservation of 27% only, even though their population us almost

twice this figure.

Implementation

All the recommendations of the report are not yet implemented. The recommendation of

reservations for OBC's in government services was implemented in 1993. As on 27 June

2008 there was still a backlog of 28, 670 OBC vacancies in government jobs. The

recommendation of reservations in Higher educational institutes was implemented in 2008.

Criticism of empirical data approach of giving reservation by

Mandal Commission:

The National Sample Survey puts the figure of Hindu OBC population at 32%. There is

substantial debate over the exact number of OBC's in India, with census data compromised

by partisan politics. It is generally estimated to be sizable, but lower than the figures quoted

by either the Mandal Commission or and National Sample Survey.

There is also an ongoing controversy about the estimation logic used by Mandal commission

for calculating OBC population. Famous Indian Statistician,Mr.Yogendra Yadav who

supports Reservations agrees that there is no empirical basis to the Mandal figure. According

to him "It is a mythical construct based on reducing the number of SC/ST, Muslims and

others and then arriving at a number.

National Sample Survey's 1999-2000 round estimated around 36 per cent of the country's

population is defined as belonging to the Other Backward Classes (OBC). The proportion

falls to 32 per cent on excluding Muslim OBCs. A survey conducted in 1998 by National

Family Health Statistics (NFHS) puts the proportion of non-Muslim OBCs as 29.8 percent

L R Naik, the only Dalit member in the Mandal Commission refused to sign the Mandal

recommendations. He said that there are two social blocks among the OBCs: upper caste

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(Jatand Gujjar) and upper OBCs (Yadavs, Kurmis, etc.) and Most Backward Classes (MBCs).

He feared that upper OBCs would corner all the benefits of reservation.Recently also in

2011,when the previous government conducted Socio Economic and Caste Census

2011(SECC),its report has created a huge uproar as every party and person is interested in

knowing the exact number of backward classes in India and as per that figure,they want their

big share as per their population.

As the debate on OBC reservations spreads, a few interesting facts which raise pertinent

question are already apparent. To begin with, do we have a clear idea what proportion of our

population is OBC? According to the Mandal Commission (1980) it is 52 percent. According

to 2001 Indian Census, out of India's population of 1,028,737,436 the Scheduled Castes

comprise 166,635,700 and Scheduled Tribes 84,326,240, that is 16.2% and 8.2%

respectively. There is no data on OBCs in the census. However, according to National

Sample Survey's 1999-2000 round around 36 per cent of the country's population is defined

as belonging to the Other Backward Classes (OBC). The proportion falls to 32 per cent on

excluding Muslim OBCs. A survey conducted in 1998 by National Family Health Statistics

(NFHS) puts the proportion of non-Muslim OBCs as 29.8 per cent. The NSSO data also

shows that already 23.5 per cent of college seats are occupied by OBCs. That's just 8.6 per

cent short of their share of population according to the same survey. Other arguments include

that entrenching the separate legal status of OBCs and SC/STs will perpetuate caste

differentiation and encourage competition among communities at the expense of nationality.

They believe that only a small new elite of educated Dalits, Adivasis, and OBCs benefit from

reservations, and that such measures do nothing to lift the mass of people out of

backwardness and poverty.

CONSTITUTIONAL MANDATE:

The Constitution of India has provided, among other various protections and safeguards,

safeguards for Public employment to the persons belonging to the Scheduled Castes and

Scheduled Tribes, keeping in view the discrimination and disabilities suffered by these

classes to catch up and compete successfully with the more fortunate ones in the matter of

securing public employment. Specific provisions for reservations in services in favour of the

members of Scheduled Castes and Scheduled Tribes have been made as follows in the

Constitution of India:-

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Article 16(1): There shall be equality of opportunity for all citizens in matters relating to

employment or appointment to any office under the State.

Article 16(4): Article 16 provides for equality of opportunity for all citizens in matters

relating to employment or appointment to any office under the State, Nevertheless, “nothing

in this Article shall prevent the State from making any provision for the reservation of

appointments or posts in favour of any backward class of citizens which, in the opinion of the

State, is not adequately represented in the services under the State”.

There have been two Constitution Amendments incorporated in Article 16(4), they are:-

Article 16 (4-A) : Nothing in this article shall prevent the state from making any provision

for reservation in matters of promotions, with consequential seniority, to any class or classes

of posts in services under the state in favour of SCs/STs which in opinion of state, are not

adequate by represented in the services under the state.

The 77th Amendment to the Constitution has been brought into effect permitting reservation

in promotion to the Scheduled Castes and Scheduled Tribes.

Thus, by amending the Constitution, the Parliament has removed the base as interpreted by

Supreme Court in Indira Sawhney that the appointment does not include promotion. Article

16(4A) thus revives the interpretation put on Article 16. Rule of reservation can apply not

only to initial recruitments but also to promotions. But no promotion can be made in

promotion posts for the OBC’s.

The Supreme Court has emphasized that Article 16(4A) ought to be applied in such a manner

that a balance is struck in the matter of appointments by creating reasonable opportunities for

the reserved classes as well as for the other members of the society.

Article 16 (4-B): “Nothing in this article shall prevent the State from considering any

unfilled vacancies of a year which are reserved for being filled up in that year in accordance

with any provision for reservation made under clause (4) or clause (4A) as a separate class of

vacancies to be filled up in any succeeding year or years and such class of vacancies shall not

be considered together with the vacancies of the year in which they are being filled up for

determining the ceiling of fifty per cent reservation on total number of vacancies of that

year.”

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The Constitution (Eighty- First Amendment) Act, 2000 has added Article 16(4B) to the

Constitution. The Amendment envisages that the unfilled reserved vacancies are to be carried

forward to the subsequent years and these vacancies are to be treated as distinct and separate

from the current vacancies during any year. The rule of 50% reservation laid down by the

Supreme Court is to be applied only to normal vacancies. This means that the unfilled

reserved vacancies can be carried forward from year to year without any limit, and are to

be filled separately from the normal vacancies. This Amendment also modifies the

proposition laid down by the Supreme Court in Indira Sawhney.

Article 335: This article provides that “the claims of the members of the SCs and STs shall

be taken into consideration, consistently with the maintenance of efficiency of administration

in the making of appointments in services and posts in connection with the affairs of the

Union or of a State”.

RESERVATION FOR BACKWARD CLASSES IN INDIA:

ARTICLE 16(4) :- This clause (4) expressly provides for the reservation of appointments

or posts in favour of any backward class of citizens which, in the opinion of the state is not

adequately represented in the services under the state. Here the term state denotes both

Central and state governments and their instrumentalities.

The power conferred on the State can only be exercised in favour of a backward class and

therefore, whether a particular class of citizens is backward, is an objective factor to be

determined by the state.

In Indira Sawhney and Ors. Vs. Union of India and Ors.12, the Court observed that:-

The meaning of the expression “backward classes of citizens” is not qualified or

restricted by saying that it means those other backward classes who are situated

similarly to Scheduled Caste and/or Scheduled Tribes. Backwardness being a relative

term must in the context be judged by the general level of advancement of the entire

population of the country or the State, as the case may be.

12 1992 Supp (3) SCC 212

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There is adequate safeguard against misuse by the political executive of the power

u/Art. 16(4) in the provision itself. Any determination of backwardness is neither a

subjective exercise nor a matter of subjective satisfaction. The exercise is an objective

one. Certain objective social and other criteria have to be satisfied before any group or

class of citizens could be treated as backward. If the executive includes, for collateral

reasons, groups or classes not satisfying the relevant criteria, it would be a clear case

of fraud on power.

‘Caste’ neither can be the sole criterion nor can it be equated with 'class' for the

purpose of Article 16 (4) for ascertaining the social and educational backwardness of

any section or group of people so as to bring them within the wider connotation of

'backward class'. Nevertheless 'caste' in Hindu society becomes a dominant factor or

primary criterion in determining the backwardness of a class of citizens.

Unless 'caste' satisfies the primary test of social backwardness as well as the

educational and economic backwardness which are the established and accepted

criteria to identify the 'backward class', a caste per se without satisfying the agreed

formulae generally cannot fall within the meaning of 'backward class of citizens'

under Article 16 (4), save in given exceptional circumstances such as the caste itself

being identifiable with the traditional occupation of the lower strata - indicating the

social backwardness. And ‘Class’ has occupation and Caste nexus; it is homogeneous

and is determined by birth. It further approved Chitralekha case.

(9) Further in case of Jagdish Negi v. State of U.P.Jt13 Court held “Backwardness is not a

static phenomenon. It cannot continue indefinitely and the State is entitled to review the

situation from time to time.”

  PART III OF THE CONSTITUTION IN RELATION TO

RESERVATION IN PUBLIC SERVICES:

Article 14 is in general terms whereas Arts. 15 and 16 are of specific nature. Shortly put the

combined effect of Arts. 14, 15 and 16 as far as public employment is concerned, is that they

guarantee non-discriminatory treatment of citizens in matters relating to public employment.

Religion, race, caste, sex, descent, place of birth, residence or any of them cannot be the basis

13 AIR 1997 SC 3505

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for discrimination against a citizen in matters relating to public employment or office under

the state.

Reservation in favour of backward classes of citizens is dealt with by cl. (4) of Art.16.

It is an enabling provision and is in the nature of a provision or an exception to cl. (1) of

Article 16 of the Constitution?

  ARTICLE 16(4) AND ARTICLE 335

Article 335: provides that “the claims of the members of the SCs and STs shall be taken into

consideration, consistently with the maintenance of efficiency of administration in the

making of appointments in services and posts in connection with the affairs of the Union or

of a State”.

There has been some debate as to whether Art.335 had any limiting effect on the power of

reservation conferred by Art. 16 (4). The nine judge bench of the Supreme Court in Indira

Sawhney considered the argument that the mandate of Art.335 implied that reservation should

be read subject to the qualification engrafted in Art.335 i.e. consistently with the maintenance

of efficiency of administration. Dealing with the argument majority framed an issue as to

whether reservations were anti-meritarian? The majority then observed that may be

efficiency, competence and merit are not synonymous concepts; may be it is wrong to treat

merit as synonymous with efficiency in administration and that merit is but a component of

the efficiency of an administration.

Even so the relevance and significance of merit at the stage of initial recruitment cannot be

ignored. It cannot also be ignored that the very idea of reservation implies selection of a less

meritorious person. At the same time, we recognise that this much cost has to be paid, if the

constitutional promise of social justice is to be redeemed. We also firmly believe that given

an opportunity, members of these classes are bound to overcome their initial disadvantages

and would compete with-and may in some cases, excel members of open competitor

candidates. It is undeniable that nature has endowed merit upon members of backward classes

as much as it has endowed upon members of other classes and what is required is an

opportunity to prove it.

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But in case of Article 16, Article 355 would be relevant. It may be permissible for the

government to prescribe a reasonably lower standard for scheduled castes/Scheduled

tribes/backward classes consistent with the requirements of efficiency of administration. It

would not be permissible not to prescribe any such minimum standard at all. While

prescribing the lower minimum standard for reserved category, the nature and duties attached

to the post and the interest of the general public should also be kept in mind. While on Article

355, we are of the opinion that there are certain services and positions where merit alone

counts. In such situations, it may not be advisable to provide for reservations. For example

technical post in Research and Development organisations/departments/institutions,

superspecialities in medicine, engineering etc.

CENT PERCENT RESERVATION NOT PERMISSIBLE:

No cent percent reservation

The state is not entitled to make a cent percent reservation. That would be violative of Art.16

of the Constitution. The Supreme Court has ruled time and again, that where there is no only

one post in the cadre, there can be no reservation for the backward class with reference to that

post either for recruitment at the initial stage or filling up a future vacancy in respect of that

post otherwise the same would amount to 100 per cent reservation. A single promotional post

can also not be reserved. 14

  Application of Rotational Rule

 In case of Post Graduate Institute of Medical Education & Research, Chandigarh15 it has

been categorically stated that unless there is plurality of posts in a cadre, the question of

reservation will not arise because any-attempt at reservation by whatever means and even

with device of rotation of roster in a single post cadre is bound to create 100% reservation of

such post whenever such reservation is to be implemented.

 EXTENT OF RESERVATION

      The extent of reservation should not exceed 50%

14 Kancha Ilaiah, Merit of Reservations, Economic and Political Weekly, June 17, 200615 1998 (4) SCC 1

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In Indira Sawhney case the majority pointed out that cl. (4) of Art. 16 spoke of adequate

representation and not proportionate representation-although the proportion of population of

backward classes to the total population would a relevant factor. After referring to the earlier

decisions of the Court, the majority concluded that the reservation contemplated in cl. (4) of

Art. 16 should not exceed 50%.

It also pointed out that for the purpose of applying the rule of 50%, a year should be

taken as the unit and not the entire strength of the cadre.

CONCEPT OF CREAMY LAYER:

 In the Mandal commission case, the Supreme Court has clearly and authoritatively laid down

that the socially advanced members of the backward class, the “creamy layer”, has to be

excluded from the backward class and the benefit of reservation under Article 16(4) can only

be given to a class which remains after the exclusion of the “creamy layer”. This would more

appropriately serve the purpose and object of Article 16(4).

At present, the benefits of job reservations are most chewed up by the more effluent sections

of the backward class and the benefit of the reservation policy is not being percolated to the

poor and the really backward class amongst them which makes them poorer and more

backward. So, the government must give effect to the observation made my Supreme Court in

Mandal case in order to achieve social and economic justice for the whole section of

backward classes.

Conclusion:

It was very valid and considerable on the part of the framers of our constitution to make such

provisions when India as a country was going through not only internal but many external

problems. The situation at that time demanded India to be united in power, culture and

education so that we have greater quality strength to fight back the odds of the society. But it

has almost been more than sixty years from the year when India finally got its freedom. Even

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today we find that these reservations are existing and due to this perhaps the Equality

concept is getting violated in our country where we find that there is massive misuse of

power and the privileges that has been provided in order to make our country a better place to

live in.

Majoritarianism is a common vice that persists in a democratic society. As the government is

chosen by the majority and every decision that is taken depends upon the majority vote, the

law tends to favour this majority. But there are different ways of identifying this majority-

educated people, economically and socially powerful people, people of the forward caste,

Hindus, males, etc. some of these classes might overlap but the essence remains the same.

These are the people who make the law and whom the law favors. However, in India, the

constitution makers wanted to avoid this situation of hierarchy and majority rule. A true

democracy is established when all people have the same ability to make the decisions

regarding the government. For this reason the reservation policy is adopted to bring this

equality in thought and goals. Reservations by themselves are not unfair, but they become so

when the ground for distinction loses its credibility. In case of India, that is what is

happening, because SC’s, ST’s and OBC’s are not purely classified as socially backward and

a line should be drawn somewhere. The violation of a principle of equality reduces public

confidence in the government. The loss of this confidence prophecies anarchy and in a

pluralistic democracy like ours, its very important to maintain this fine balance between

power and principle. Thus, reservation maybe a means to achieve equality but if not

administered properly, it can also achieve inequality.

BIBLIOGRAPHY:

B.P. Mandal. The Mandal Commission Report, 1980.

Babasaheb Ambadekar : writings and speeches

Dharma Kumar. The Affirmative Action Debate in India.

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Government Of India. National Commission for Backward Classes, 2010.

Paswan, Sanjay; Jaideva, "B.R. Ambedkar: Messiah of Dalits. Delhi: Kalpaz

Publications.

Sadana, Rashmi, “The Politics of Caste Identity". The Cambridg Companion to

Modern Indian Culture. Cambridge University Press.

Basu, Durga Das (2008). Introduction to the Constitution of India. Nagpur:

LexisNexis Butterworths Wadhwa.

Laskar, Mehbubul Hassan. "Rethinking Reservation in Higher Education in India".

ILI Law Review.

Jayathi Gosh, Case for Caste-based Quotas in Higher Education, Economic and

Political Weekly, June 17,2006

Jain , MP, “Indian Constitutional Law”, Wadhwa and Company, Nagpur, Volume

2.Publications,2010

Singh ranbir, Nath A lakshmi, “ Constitutional Law “LexisNexis butterworths” , 1st

Edition 2006.

Bakshi,PM,”The Constitution of India”,Universal Law Publishing Co.,New Delhi,12th

edition 2013

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