A closer look on the Judgments vis-à-vis Reservations in India
In this article, i.e. “A closer look on the Judgments vis-à-vis Reservations in India” the author Anamika Mishra explains all the relevant case laws and journey of reservation system. Reservations in India The historical reservation for the backward class in the University of Madras from the year 1929, even before the Constitution was adopted was struck down in… Read More »
In this article, i.e. “A closer look on the Judgments vis-à-vis Reservations in India” the author Anamika Mishra explains all the relevant case laws and journey of reservation system.
Reservations in India
The historical reservation for the backward class in the University of Madras from the year 1929, even before the Constitution was adopted was struck down in State of Madras v. Champakam Dorairayan in 1951. The Hon’ble Supreme Court held that it is violative on the ground of Article 15 (I) stating that
“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them”.
As a result, the first amendment to the Constitution of India introduced reservation of seats for Socially and Educationally Backward Classes (SEBC). Hence, beginning from 1951 and the first amendment in the same year, seats can be reserved for SEBC, SC, and ST vis-à-vis Article 15.
M.R Balaji and Ors v. State of Mysore
This led to remarkable judgments on reservations starting with M.R Balaji and Ors v. State of Mysore in 1962. The Government in Mysore had introduced reservation in Karnataka and reserved 68% of seats for backward classes. The criteria for Identifying Backwardness were the following:
- Caste significantly indicating Lower caste.
- Occupation
- Place of Habitation
- Position of the caste.
The Hon’ble Supreme Court held that the criteria’s sufficiently did follow the categorization of social and backwardness but the validity could not be applicable as it only includes Caste and Article 15(4) uses the term Class which is not the synonym of Caste.
Hon’ble Mr. Justice Ganjendragadkar also noted that Article 15(4) is an exception to Article 15(1), meaning thereby, Article 15(1) does not discriminate on the basis of caste and Article 15(4) allows you to make certain special provisions with respect to reservation. And following this interpretation, if Article 15(4) is an exception then, it cannot hold a larger ground than that of the main provision that is of Article 15(1). Hence, The 50% reservations rule. The 70% reservation by the Government of Mysore was struck down.
T Devadasan v. Union of India
Following Balaji Case, the “carry forward rule” was held to be unconstitutional in T Devadasan v. Union of India in 1964 as the reserved vacancies in one year had risen to more than 50%. Hon’ble Mr. Justice Subba Rao held,
“Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. And the expression “nothing in this article” in Article 16(4) is a legislative device to express its intention in a most emphatic way that the power conferred there under is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammeled by the other provisions of the Article.”
State of Kerala v. N.M Thomas
However, this 50% Reservation rule got a different interpretation in State of Kerala v. N.M Thomas in 1975, wherein, Hon’ble Mr. Justice Krishna Iyer stated with respect of the reservation in promotion and giving preferential treatment to SC’s and ST’s under clause 1 of Article 16 and that the carry forward rule was upheld–
“As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50%.
As I read the authorities, this is, however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of backward classes of citizens which constitute 80% of the population and the Government, in order to give them proper representation, reserves 80% of the jobs for them, can it be said that the percentage of reservation is bad and violates the permissible limits of clause (4) of Art. 16? The answer must necessarily be in the negative. The dominant object of this provision is to take steps to make inadequate representation adequate.”
The reasonable questions were still not answered in any of the judgments above, that is,
- Who will be identified as a backward class people?
- Who will be treated to be deficient in employment under the state?
The Mandal Commission played a crucial role in answering these questions.
Indra Sawhney and Ors v. Union of India
In Indra Sawhney and Ors v. Union of India, 1993, Hon’ble Mr. Justice B. Jeevan Reddy mentioned the 11 indicators evolved by way of determining social and educationally backwardness with 3 sub categories, (i) Social with 12 points (ii) Educational with 6 points (iii) Economic with 4 points. All caste which had a score of 11 points i.e. 50% or above was listed as backward socially and educationally.
Why Economic ground was chosen as criteria even though Article 15(4) talks about only Social and Educational grounds? In K.C. Vasanth Kumar & another v State Of Karnataka 1985, Hon’ble Mr. Justice J. Chinnappa O. Reddy in his separate judgment quotes, Max Weber, that there are three dimensions to social inequality and he identifies these as class, status, and power. He emphasized the role of economic poverty as a contributor to class poverty therefore, realized the economic ground is a bar to determine backwardness.
Can the indicators evolved above be applied to Article 16(4) with respect to jobs and employment? The difference between Article 15(4) and Article 16(4) is that the latter one requires backwardness which needs not be identical with the backwardness of SC and ST. Article 16(4) permits the classification of backward classes into more backward, and certainly, that excludes creamy layers. There is a need to remove the creamy layer to have more reduced and lean identification of backwardness so as to cease utilization of their social backwardness to acquire a seat of the larger group of backward class.
What should be the extent of Reservation? The court held that not more than 50% of the seats should be reserved. However, this conclusion is not reached by the argument Hon’ble Mr. Justice Ganjendragadkar put forth, that
“Article 15(4) is an exception to Article 15(1), meaning thereby, Article 15(1) does not discriminate on the basis of caste and Article 15(4) allows you to make certain special provisions with respect to reservation. And following this interpretation, if Article 15(4) is an exception then, it cannot held a larger ground than that of the main provision that is of Article 15(1)” but rather by using Article 46, Article 335 and Article 16(4) that Article 335 acts as balancing between the interest of the administration as well as for whom the reservation is done.
Therefore, the 50% reservation rule. Nevertheless, states with a large population can get relaxations exceeding 50%; Tamil Nadu with 69% is a classic example.
Talking about relaxations, what is the difference between relaxations and reservations? Reservations under Article 16(4) are vertical, hence dealing with reservation of backward class, SC and ST. While Article 16(1) is the only repository of the horizontal reservation including concessions and relaxations for women, specially-abled, NRI etc.
Are Women included in Article 16(1) or Article 16(4)? Professor B Shivaramaiyah perhaps the only one who talked about women as a backward class because of the patriarchal system and that they must be included in Article 16(4). However, in the present day scenario, women are treated under Article 16(1).
Whether the Judgment in N. M Thomas asserting that reservation can be more than 50% be upheld? In the instant case, the judgment of N.M Thomas reversed the carry-forward rule, stating that if the rule breaks the 50% ceiling, it will never be permissible and that the Reservation can only be done at the entry-level. Hence, no reservation in Promotion.
77th constitutional amendment
The effects of Indra Sawhney judgment were nullified by the government in 1995 by the 77th constitutional amendment that introduced Article 16 (4A) vis-à-vis Reservations in the promotion. It allowed the state to provide reservation to a SC/ST in matters of promotion if the state believes that there is a deficiency in representation in government services. This Amendment led to a situation where reserved category candidate, who was promoted over general category candidate, became senior due to earliest promotion.
Ajit Singh Januja & Ors v. State Of Punjab & Ors
Therefore, The Judgment in Ajit Singh Januja & Ors v. State Of Punjab & Ors, 1996 introduced a catch-up rule, meaning thereby, even if the general category candidate is promoted later, once both the reserved and general are promoted, catch-up rule must apply, so that the general category candidate catch-up on the merit he had and get his seniority back. Then, in 2000, the government again brought the 81st amendment that introduced Article 16(4B) which allowed them to breach the 50 % reservation ceiling in the promotion and also permit the state to carry forward unfilled vacancies from previous years.
M.Nagaraj & Others v. Union Of India & Others
Finally, the after-effects were challenged in the court in M.Nagaraj & Others v. Union Of India & Others, 2006, wherein, the court upheld the constitutional validity of Reservation in promotion, Consequential Seniority and the carry-forward rule. The Court also answered the question raised that since the reservation is mentioned in Part III of the Constitution of India, can a person demand Fundamental Right to Reservation as a Fundamental right.
Mukesh Kumar & Anr v. State of Uttarakhand
A Two judge bench consisting of Hon’ble Mr. Justice L. Nageshwar Rao and Justice Hemant Gupta in Mukesh Kumar & Anr v. State of Uttarakhand, 2020 held that there is no fundamental right to claim reservation in promotion and no mandamus can be issued to the state Government to collect quantifiable data relating to the adequacy of representation of the SCs and ST’s in public services.
103rd Constitutional Amendment
The categorization of reservation evolved a new basis by 103rd Constitutional amendment in 2019 for Economically Weaker Section (EWS) of the society, those who are below a certain threshold level, breaching the ceiling of 50%, to now of 60%.
Reservation was in view added to ensure justice and equality and eliminate discrimination, but the politicization of the subject will only exploit the intent of the policy which currently being seen with the move of Haryana Government bringing 75% reservation for the sons of the soil in private jobs violating Article 14 of the Constitution.
The Infamous Maratha Reservation case struck down by the Hon’ble Supreme Court as no exceptional circumstances were found to grant reservation that exceeds 50% ceiling limit, however, if we go back in the history, Supreme Court quashed the decision to include Jats in the OBC category, saying caste can’t be the sole ground for reservation.
Similar reasoning was given in the case of Muslim reservation in Andhra Pradesh. The crucial aspect here is that the second backward class commission, that is the Mandal Commission (1990), found the Maratha community forward, following the Khatri Commission (1995) and Bapat Commission (2008). Politicization and appeasement of Reservation is apparent just by citing the fact that the commission set up by the Maharashtra government gave a cap of 12% to the Maratha’s but the said government increased it to 16%, making the total reservation of Maharashtra be 68%.
Chebroulu Leela Prasad Rao & Ors v. State of Andhra Pradesh
The Hon’ble Supreme Court observed, that exceeding of 50% ceiling limit without there being any exceptional circumstances clearly violated Article 14 and Article 16 of the Constitution which makes the enactment ultra vires. A Similar view was held recently in Chebroulu Leela Prasad Rao & Ors v. State of Andhra Pradesh, 2020, that 100% reservation would amount to unreasonable and unfair and thus providing 100% reservation to the scheduled caste and scheduled tribes are not permissible and not constitutionally valid. Balancing the rights is a constitutional intendment in the national and more enormous public interest.