This article has been written by Shubhangi Agarwalfrom Symbiosis Law School, Pune

Abstract

Government of India introduced the additional 10 per cent reservations for economically backward classes in 103rd Constitutional Amendment Act, 2019. The problem with this amendment is of 50% maximum limit for reservation as it may in turn violate the basic structure doctrine. Henceforth, the problem and challenges that have arisen due to the given amendment is being addressed in this paper. Through this research paper the researcher aims to understand the validity and requirement of reservation in India especially additional 10% reservation in India. The methodology adopted by the researcher is doctrinal methodology and using this methodology it has been found out that the amendment affects the equality principle, breaches 50% maximum limit for reservation and violates basic structure doctrine.

KEYWORDS: Amendment, Basic Structure Doctrine, Constitution, Equality Principle, Reservation

Statement of the problem

The pertinent question that is to be considered is that has the policy of reservation that has been continuing for over six decades now, and has been expanding, served the purpose of upliftment of the socially and educationally backward sections of the society or has it given rise to other forms of social evils, including animosity between the classes and further oppression of the reserved classes as a means of backlash against them. The present paper focuses on the constitutional validity of 103rd Constitution Amendment Act, 2019 that introduces 10 percent reservation for economically backward classes.

Research question

  • Whether the 103rd Constitutional Amendment Act, 2019 violates the basic structure doctrine and effects equality principle?
  • Whether 10% reservation for economically backward classes breaches 50% maximum limit for reservation?

Research gap

The Researcher through this paper tends to address the gap associated due to the introduction of 10 per cent reservation for economically backward classes with 103rd Constitutional Amendment Act,2019 wherein the challenge of maximum 50 per cent reservation is debated. The legal challenge associated with the 103rd Constitutional Amendment Act, 2019 is the basic structure doctrine challenge which is being addressed in this paper. The researcher also touches upon the equality principle and the excessive use of legislative power to address the gap brought in by the 103rd Constitutional Amendment Act, 2019.

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Research objective

The present paper aims to address the misunderstood necessity of 103rd Constitutional Amendment Act, 2019 which introduced the additional 10 per cent reservations for economically backward classes in a country like India which already has a cap of maximum 50 per cent reservation. The constitutional validity of 10 per cent reservation for economically backward classes is being challenged in this paper by analysing the way it violates basic structure doctrine of constitution of India and violates equality as a whole. Through this paper the researcher tends to understand the validity and requirement of reservation in India.

Literature review

Article : Can the ten per cent quota for economically weaker sections survive judicial scrutiny – The Hindu Centre for Politics and Public Policy

Author : K. Ashok Vardhan Shetty           

In the given article the author traces the constitutional and legislative history of reservations, highlights the legal infirmities in the 103rd Amendment, looks at different scenarios available before the Supreme Court, and analyses if a successful i “basic structure” challenge can be made out in the given case. All these years, the “50 per cent ceiling” rule was the only thing that had stood as the major challenge in reservation system and thus the author in this article analyses this aspect of reservation in detail.

Article : Reservations in India – A constitutional Perspective

Author : Pranav Jitendra Divgi

The author in the article briefly highlights the major questions of law which subsequently arose before the Supreme Court in the Indra Sawhney (Mandal Commission) case along with the amendments under Article 16 of the Indian Constitution. The author discusses the past amendments under Article 16 of the Indian Constitution, the opinion of the apex court regarding the same and the eventual impact upon the society at large. The author also encapsulate the very essence of the landmark judgements on reservation which have had a deep impact upon Indian Society.

Book name : Reservation and Private Sector, Quest for Equal Opportunity and Growth

Authors : Sukhadeo Thorat, Aryama, Prashant Negi

The book brings in views of experts from different fields about reservation and private sector. The book reflects the contemporary thinking of Indian Society on a vital and contentious issue of private sector reservation. It systematically ideals with discriminations associated with caste and systematic exclusion and multiple deprivations suffered by Dalits. The book raises certain questions on debate of reservation.

  1. Are the concerns about discrimination related only to equity or they also involve economic and political costs?
  2. Does reservation adversely affect economic efficiency and compromise merit?
  3. Are the principles of equity and cannon of efficiency always at odds with each other?

We must begin by acknowledging the fact that there is complete absence of two things in Indian society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty”.

  Dr B.R. Ambedkar[1

Introduction

In Indian Constitutional law, Reservation is taken into account to be a form of affirmative action whereby sure share of seats are reserved within the public sector units, union and state civil services, union and state government departments and altogether public and personal educational institutions except within the spiritual or linguistic minority educational institutions, for the socially and educationally backward communities and also the regular castes and tribes United Nations agency are inadequately painted in these services and establishments.
Its been years since India got independence, but still current system require seat for a few explicit sections of the society.     
There exist completely different castes of individuals in India like schedule castes, schedule tribes, other backward classes and upper castes citizens called general category citizens. Except the people belonging to general category i.e. the upper caste citizens, all the other residing classes in India are entitled for the advantage of reservations.           
The aim of a civilised society ought to be to secure dignity of each individual. The absence of equal opportunity in all walk of social life is denial of equal status and opportunity. There can’t be any dignity without equality of status and opportunity. With this objective the reservations found its way. However, in the current times, this policy is losing its objective for the aim it had been created.       
The legal history of reservations in India portrays that from 1951 onwards whenever the Supreme Court gave an adverse ruling on any aspect of reservations in India, the Parliament then thereby would amend the Constitution to reverse or overcome the inconvenient judicial pronouncements. One of the steps taken is the 103rd Amendment 2019 that aimed toward overcoming the Supreme Court’s rulings that economic reservation can’t be sole criterion for reservation and also the total reservations shouldn’t be more than 50 percent.

The Constitution (103rd Amendment) Act, 20192, has amended two fundamental rights that is  Article 15 and Article 16 of the Constitution of India[2]. These two articles are the bedrock of reservation in areas related to education and government jobs. By adding two new clauses to Article 15 and 16 of Indian constitution the state is now empowered to provide a maximum of 10 per cent reservation for “economically weaker sections” of citizens. This in turn increases the total reservations over and above the existing scheme to 59.50 per cent.
Article 15 of Indian Constitution, prohibits discrimination on the grounds of race, religion, caste, sex or place of birth. The amendment aims to provide reservation to those who do not fall in 15(5) and 15 (4) (effectively, SCs, STs and OBCs) i.e. economically weaker sections for admission to educational institutions other than the minority educational institutions referred to in clause (1) of article 30.
Article 16 of Indian Constitution prohibits discrimination in employment in government office. With the amendment Article 16 (6) is added to provide reservations to people from economically weaker sections in government posts.
Henceforth, the “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”
The income limit of Rs. Eight lakhs and the asset limits prescribed for determining economic backwardness are the same as the limits fixed for determining the ‘creamy layer’ for OBC. This essentially means that the 103rd Amendment practically removes the difference between the OBC-NCL and the “EWS other than SC, ST and OBC-NCL”. This would lead to treating unequals equally.

The Supreme Court has consistently ruled that for reservation to be reasonable and not defeat the main right to equality, the total reservations should not be greater than 50 per cent. However, this ‘50 per cent ceiling’ stands effectively breached by the latest Constitution amendment.

History of reservation & it’s continued existence

Reservation was introduced long before Independence for backward classes in areas including Presidency areas and Princely states. After the Constitution of India came into force in 1950i, the Centre as well as the States implemented reservations for SC and ST while several States implemented reservation for backward classes.  The major changes were made after Independence in caste system when Mandal Commission came into picture and it assessed the socially educationally backward classes of citizens.

Mandal Commission was established in leadership of B.P. Mandal in 1979. This commission have made identification of ‘socially and educationally backward classes of citizens’. He made determination on the bases of factors like social status, economic consideration and educational criteria. The Mandal Commission identified around 3,743 communities (including both Hindu and non-Hindu) as “Other Backward Classes” which constitutes nearly 52 per cent of the population of India. However, in deference to the rulings of the Supreme Court limiting the total reservation to 50 per cent, the Commission recommended only 27 per cent reservation in jobs in Central Government in favour of OBC in addition to the 22.50 per cent reservation already existing in favour of SC and ST. This took the overall quota to 49.5%. This was immediately challenged before the Supreme Court.

Constitutional validity challenge

The legal challenge to the validity if the 103rd amendment is a ‘basic structure challenge’.

Certain structural principles form the core or the essence of the Constitution and give it a particular ‘Identity’ such as democratic form of government, republican form of government, federalism, equality, freedom, secularism, independence of the judiciary, power of judicial review and so on. This is given by the doctrine of basic structure and thus it can not be amended as it would destroy the identity of the constitution itself.

In the landmark case of Kesavananda Bharati v. State of Kerala[3] , the Supreme Court ruled that the Parliament’s power to amend the Constitution under Article 368 is not absolute and even a Constitutional amendment can be struck down if it has the effect of destroying or abrogating the ‘basic structure’ of the Constitution.

In September 1991,an Office Memorandum issued by the then P.V. Narasimha Rao government reserved ten percent of posts for ‘other economically backward sections’. This decision was struck down by the Supreme Court in Indra Sawhney v. Union of India[4]. In Indra Sawhney v. Union Of India and Ors. , the court went into the legality of the quotas, elaborately analysing the concept of backwardness. As per, Dr. BR Ambedkar, the classes of citizens for whom reservations were to be made are those “communities which have not had so far representation in the State.” One of the reasons for the quota limit as 50% is explained in Indra Sawhney where the Constitution was seen as enabling “appropriate representation” and not “proportionate representation”.

Some of the important decisions taken in Indra Sawhney case with respect to reservation is highlighted as below :
• It upheld the 27 per cent reservation for OBC subject to the “creamy layer” being
excluded.
• It quashed the 10 per cent reservation for economically backward sections and ruled that a backward class of citizens cannot be identified only and exclusively with reference to economic         criteria.
• It held that the reservations under carried-forward or backlog reserved vacancies
shouldn’t exceed 50 per cent of the appointments every year
• It ruled that reservations can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.

 The Hon’ble Court, in the case of M. Nagaraj v. Union of India & Ors.[5] upheld the Constitutional validity of Article 16 (4A) and the proviso to Article 335 and reiterated that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, such as inadequacy of representation, backwardness, and overall administrative efficiency are some of the constitutional requirements without which the essence of equality of opportunity in Article 16 would collapse. It has also been stated that be it reservation or evaluation, excessiveness in either form would result in violation of the constitutional mandate. Thus, the 50% ceiling limit of reservations has been engrafted as a part of the basic structure of the Constitution’s equality code.

Critical analysis

Reservation – non-required necessity

 “Give a man a fish; you have fed him for today. Teach a man to fish; and you have fed him for lifetime”.

The Constitution of India redresses the historic injustices and correct the manifest imbalance in matters of higher education and public employment by delineating an “equality code”[6]. Article 14 guarantees equality before the law and the equal protection of law for everyone.[7]

In M.R. Balaji v. State of Mysore[8] , the Supreme Court stroke down the 68 per cent reservation made under Article 15 (4)[9] for admissions to medical and engineering colleges in the (then) State of Mysore, and instead held that the reservation should not be more than 50 per cent. The logic of the ‘50 per cent ceiling’ for reservations in M.R. Balaji case was based on the argument that the exception cannot override the rule. If Article 16 (4) is not an exception to Article 16 (1), then there is nothing to stop the State from breaching the ‘50 per cent ceiling’ for reservations unless the total population of the under-represented classes itself is less than 50 per cent. However, this is not the case in India.

However, in State of Kerala v. N.M. Thomas[10], the Supreme Court ruled that Article 16(1), being a facet of the doctrine of equality, permits reasonable classification of all persons who are similarly situated with respect to the law similar to Article 14. In other words, Article 16(1) itself permits reservations and preferential treatment even without Article 16(4) of Indian constitution.  Article 16(4) is not an exception to Article 16(1) and only seeks to make explicit what is already implicit in Article 16(1).

However, the other argument holds that Articles 15(4) and 16(4), providing for reservation in education and public employment, comes as ‘exceptions’ to the equality and non discrimination provisions of Articles 15 (1) and 16(1) and so violating the ‘50 per ceiling’ results in reverse discrimination.

In short, the Supreme Court’s ruling in Indra Sawhney represents a middle path between M.R. Balaji and N.M. Thomas. By reaffirming the ’50 per cent ceiling’ rule, It struck a balance between formal equality and substantive equality.

Similar past instances

The Government of India issued an executive order in September 1991 reserving 10 percent of the vacancies in civil posts and services for other “economically backward sections of the people who are not covered by any of the schemes of reservation”. This was done to appease the agitating upper castes which were not satisfied with the implementation of reservations for Other backward classes. This led to increase in the total reservation to 59.50 per cent, considerably in excess of the ceiling of 50 per cent fixed by the Supreme Court. This 10 per cent reservation was identical to the motive of 103rd Amendment except that the 1991 order did not have the backing of a Constitution amendment.

On similar situation it is pointed out that when the Government of Gujarat issued an Ordinance in 2016, in response to the Patidar agitation, providing for 10 per cent reservation in higher education and public employment for “economically weaker sections of unreserved categories with annual income below Rs.6 lakhs”, the same was quashed by the High Court of Gujarat (2016) based on the Indra Sawhney precedent. When the State Government relied on theextraordinary situation’ loophole in Indra Sawhney for breaching the “50 per ceiling” rule for reservations, the High Court of Gujarat rejected this contention, and rightly so, by stating that no such ‘extraordinary situation’ was made out in the case of reservation for the economically weaker sections.

Basic structure doctrine challenge

The vires of a Constitutional Amendment is tested against the touchstone of the Basic Structure of the Constitution.[11]The nature of the Basic Structure is such that it cannot be damaged or destroyed.[12] Thus, the present constitutional amendment is unconstitutional in nature as :

  • The Amendment violates the principle of equality
  • The Amendment breaches the 50% ceiling on reservations, and
  • The Amendment destroys substantive democracy

Amendment violates principle of equality

The principle of Equality is an essential feature of the Basic Structure.[13] The various facets of
the principle of equality are enshrined in Articles 14, 15, 16, 17, and 18 of the Constitution of India, 1950. Any alteration of this ‘Equality Code’ must stand the widely accepted tests of ‘Identity’ and ‘Width’ as laid out in the M. Nagaraj case.[14] These tests were developed to ensure that the balance between equality in law and equality in fact is maintained whenever an Amendment is formulated in regard to reservations.[15]

Amendment damages constitutional identity

The Identity Test as laid out in M. Nagaraj stipulates that to alter the identity of the principles constituting the Basic Structure is to abrogate the Basic Structure itself.[16] Thus, any alteration in the existing structure of the Equality Code would be tantamount to violating the Basic Structure itself.

Violation of equality principle : There exist two fundamental approaches to Equality: formal equality and substantive equality. Formal equality or “anti-classification” regards gender, race, ethnicity, or other status (personal characteristics) as irrelevant.[17] This approach presupposes that it is both desirable and possible to abstract an individual from these aspects of her identity and treat her entirely on “merit” (personal qualities).[18]

Substantive equality recognizes that these characteristics can be valued aspects of an individual’s identity as these “personal characteristics”[19] can affect a person’s “personal qualities”.[20] It can thus be inferred that formal equality must be conceived on an individual basis whereas substantive equality must be conceived on the basis of group identity. For formal equality to prevail, substantive equality must be guaranteed. Therefore, the Constituent Assembly sought to address the historic injustices faced by an individual by virtue of their group identity.[21]

One of the means devised by the Constituent Assembly towards the end of resolving ‘individual discrimination’ by ameliorating  ‘group inequalities’ was Articles 15 and 16 of the Indian Constitution.[22] Articles 15 and 16 guarantee substantive equality by using the  ‘social and educational backwardness’ of a group.[23] Thus, the intention of the Constitutional makers never contemplated inclusion of individual metrics for guaranteeing formal equality within the scheme of the Equality Code.

In M.G. Badappanavar v. State of Karnataka (2000)33, the Supreme Court ruled that “equality is the basic feature of the Constitution and any treatment of equals as unequals or any treatment of unequals as equals would violate the basic structure of the Constitution”. Therefore, the income limit for determining economic backwardness should be lower and should not be the same as that for determining the ‘creamy layer’ for Other backward classes.

Amendment is an excessive use of legislative power

The width test laid down in M. Nagaraj similarly laid down a standard to ensure that constitutional requirements have not been destroyed by the entry into force of the Constitutional Amendment.[24] The Width Test in M. Nagaraj acts as a corollary to the Minerva Mills judgement[25], barring the unlimited constituent powers of the Parliament.

The present 103rd Amendment was preceded by a Statement of Object and Reasons which opined that reservations solely on the criteria of economic backwardness was in furtherance of the mandate of Article 46.[26] The Amendment, in particular, excludes the Scheduled Castes, Scheduled Tribes and Other Backward Classes from availing the benefit from the said Amendment thereby rendering a discordance between the Object and the Clause.[27] This exceeds the ‘width’ of the power conferred on the Parliament. Hence, the impugned Amendment violates the principle of Equality and also fails the twin tests of Basic Structure.

Amendment breached the 50% ceiling on reservations

In order to balance the formal equality and substantive equality, the 50% Rule was envisaged. This rule stipulates that the reservations provided cannot exceed 50% of the total available opportunities or reservations. However, The 50% Rule forms part of the Basic Structure, and the present Constitutional Amendment is violative of said Rule.

The 50% rule regarding reservation has been within the consciousness of the constitution makers as can be seen in discussions of the Constituent Assembly Debates. B.R. Ambedkar expounded that the reservation should be for the minority of seats and that there has to be a balance exercised between the needs of the minority communities and formal equality.[28]

Furthermore, in Indra Sawhney v. Union of India, it was held that “Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter”.[29]

Similarly, it can be understood that Article 16(4) is an exception to the rule of Article 16(1).[30] The rule is to ensure equality of opportunity in public employment. The exception to this rule is the power of the State to provide for special reservations for backward classes who lack representation. Given that an exception cannot obliterate the rule, the reservation for backward classes cannot exceed 50%. Furthermore, in Jarnail Singh v. Lachhmi Narayan[31], backward classes has been understood to mean Scheduled Castes, Scheduled Tribes, and Other Backward Classes.

The Apex Court has held at various instances that reservations have to be balanced with the formal right to equality.[32] That balance gets disrupted if the 50% ceiling is exceeded.[33]In addition to that, the ceiling limit of 50% has gained Constitutional imprimatur in Article 16 (4)(b).[34]  In M. Nagaraj v. Union of India, the 50% ceiling limit was made part of the Width Test and termed as a constitutional requirement without which the structure of Article 16(1) of the Indian Constitution would collapse.[35]        
Hence, 50 per cent Rule is part of Basic Structure as it acts as a balancing factor between formal equality and substantive equality. It preserves the spirit of Equality our Constitution furthers through its Constitutional scheme.

Given that the 50 percent rule is part of the basic structure, thus the present Constitutional Amendment breaches the 50 percent rule by providing for a 15% reservation over and above the existing 49% reservation. There are no compelling reasons which have been provided to justify the necessity for such a reservation.[36] In other words, as the end goal of sub clause
(6) of Article 15 and 16 is to provide for reservations which forms part of the substantive equality, it has to be balanced against the principle of formal equality.

Amendment grants reservation to well-represented classes

It is a two fold mischief. Firstly, the “upper castes” (hereinafter unprotected groups) who do not have grounds to claim reservation will receive the benefit from the same. Secondly, the protected groups even when competing in the unreserved category in later generations, which” is the ultimate aim of reservation, will never have complete access to all the seats as a particular percentage of seats will be specifically be kept out of their reach and in the hands of the unprotected groups. This is essentially damaging the concept of equal moral membership and the principle of substantive democracy.

The Constitutional Amendment destroys the Basic Structure doctrine on the various grounds of violating the Equality Code, breaching the 50% ceiling on reservations, and affecting substantive democracy in the nation.”

“The latest case along with other cases that have been filed to challenge the constitutional of the Constitution (One Hundred and Third Amendment) Act, 2019, which introduces reservations for Economically Weaker Sections (EWS). Specifically, it provides  for 10% reservation in government jobs and educational institutions for persons falling within the economically backward sections in the unreserved category and it violated the constitutional validity and breaches 50 per cent rule along with violation of basic structure doctrine is still pending in the court of law.[37]

Arbitrariness

Family income criteria has no relation with the goal of reservation. This is the last possible attack on the grounds of arbitrariness. In other words, reservation is not the remedy to the problem of poverty but reservation is about compensating for social and institutional barriers to representation. This makes mandating reservation on economic disadvantage arbitrary.

Recommendations

With the introduction of 10 percent of reservation for economically weaker sections in India, the increased reservation has gone over and above to 59.5 per cent. 7.5%, 15%, and 27% quotas are reserved for Scheduled Tribes, Scheduled Castes, and Other Backward Classes respectively.”

With the 103rd Amendment Act, 2019 now at present only 40.5% of seats will be allocated in educational institutions jobs based on the merit of candidates. This increase in reservation has compromised on the merit quota which are more deserving candidates in country. The merit quota is not reserved – not even for the general. It is open to all candidates including Scheduled Caste, Scheduled Tribes, Other Backward Classes, and the General category – who qualify on merit (not on the basis of reservation). This does not do justification to those who deserve and should be given opportunity on the basis of their hard work and merit.

Thereby following points are recommended in respect of reservation in India :

  • Reservation can be considered as one of the methods for social upliftment. There are many other methods like providing scholarships, funds, coachings, and other welfare schemes to uplift the economically weaker and socially backward classes in India.
  • Reservation based entirely on economic criteria is not a perfect solution, wherein family income is one of the criteria along with asset valuation.
  • The need of the hour is to fix a time period for reservation system rather than extending it to eternity.
  • Reservation if being given should be limited to the quota as presrcibed of 50 per cent. The adjustment of economically weaker section in reserved category should be made within 50 per cent reservation quota and should not be exceeded. This would ensure in giving fair and equal opportunity to meritorious candidates as well.”
  • If it is deemed necessary that 27% reservation is to be sustained then it should be done on the basis of fulfilling the minimum criteria of marks which every student, irrespective of the category they belong to has to secure. This will prevent dilution of academic standards. If the quota seats are not filled then, the remaining seats should be made open to the general category, after a lapse of particular period of time. This will prevent wastage of seats and allotting it to deserving candidates.
  • The dissemination of primary education would be fair and universal by making the education till the age of 15 as mandatory.
  • Reservation benefits, if provided, should be restricted to a maximum of two children per family irrespective of the number of children in a family. This in turn would help in regulating the representation of all the classes giving way to the principle of equality.
  • The other way could be restricting the reservation system to one generation only in a family.

Conclusion

The system of reservation is not entirely based on casteism and thus divides the society leading to discrimination and conflicts between different categories. It is the converse of a communal living. Reforms in reservation system is the need of the hour. The reservation system has mostly led to a conflict between the reserved and the unreserved categories of the country. Observing from a neutral perspective it can be stated that although reservation is needed for the country but at the same time there is a need to create a system which supports affirmative action more than appeasement politics. Any negative aspect of reservation should not serve as a hurdle for the development of rapidly growing economy of India.”

The present amendment is violative of the principle of Equality as it damages the constitutional identity of the Articles enshrined in the Equality Code and the Parliament has acted has made excessive use of their legislative powers to enact this Amendment. Furthermore, the Amendment violates the 50% Rule which is part of the Basic Structure. Also, the Present Amendment destroys the principle of Substantive Democracy by granting reservation to well represented classes.

Thus, the 103rd Amendment has the effect of enhancing and cementing the representation of those who are already over-represented in the public services relative to other population, who own a disproportionate percentage of the country’s wealth. This does violence to the concept of equality as is commonly understood and changes it beyond recognition and fails the “identity test” prescribed in M. Nagaraj.  

A Constitutional amendment can be struck down by the Supreme Court if it has the effect of destroying or abrogating the “basic structure” of the Constitution as given in Preamble. ”

References

Cases

  • Kesavananda Bharati v. State of Kerala1973 SC 1461
  • Indra Sawhney v. Union of India AIR 1993 SC 477
  • Nagaraj v. Union of India & Ors.(2006) 8 SCC 212,
  • Ramana Dayaram Shetty v. The International Airport Authority of India, 1979 AIR 1628
  • Ashoka Kumar Thakur v. Union of India, 1972 (1) SCC 660.
  • C. Vasanth Kumar & Another v. State Of Karnataka, AIR 1985 SC 1495
  • R. Balaji v. State of Mysore 1963 AIR 649
  • State of Kerala v. M. Thomas 1976 AIR 490
  • Minerva Mills v. Union of India, AIR 1980 SC 1789,
  • Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.
  • The General Manager, Southern Railway v. Rangachari, 1962 AIR 36,
  • A. Rajendran v. Union Of India & Ors., 1968 AIR 507,
  • Devadasan v. The Union Of India and Anr., 1964 AIR 179,
  • State Of Punjab v. Hiralal & Ors., 1971 AIR 1777
  • Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396
  • Youth for Equality v. Union of India, 11 January 2019

Articles

  • Pranav jitendra divgi, reservations in india – a constitutional perspective, The World Journal on Jurist Polity, February 2017
  • Sandra Fredman, Substantive Equality Revisited, Volume 14, OXFORD I.CON, 712, 732-733, (2016)
  • Sandra Fredman, Discrimination Law (2nd ed., 2011).
  • Sunil Kumar Jangir, Reservation, Reservation Policy and Indian Constitution in India, American International Journal of Research in Humanities, Arts and Social Sciences, 3(1), June-August, 2013
  • Ashok Vardhan Shetty , Can the ten per cent quota for economically weaker sections survive judicial scrutiny, The Hindu Centre for Politics and Public Policy

Book

  • Sukhadeo Thorat, Aryama, Prashant Negi ; Reservation and Private Sector, Quest for Equal Opportunity and Growth

Online sources

  • Constituent Assembly Debates, Constituent Assembly of India Debates (Proceedings) – Volume VII, November 30, 1948
  • Ambedkar, B.R. 1949.Speech at the Constituent Assembly of India”, published at Indian National Congress website, November 25.
  • Parliament of India, Constituent Assembly Debates, Vol. VII, 30th November 1948 (speech of B.R. Ambedkar),
  • The Economic Times, Reservation needs to be on socio-economic criteria: Major General (Retd) SR Sinho)
  • SCC Online
  • Manupatra

Endnotes

[1] Ambedkar, B.R. 1949.Speech at the Constituent Assembly of India”, published at Indian National Congress website, November 25. [https://www.inc.in/en/media/speech/speech-at-the-constituent-assembly-of-india].

[2] Article 15 of Indian Constitution : Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth                 :
1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of      them.
2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to
any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants,
hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
3) Nothing in this article shall prevent the State from making any special provision for women and children.
4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision
for the advancement of any socially and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes.
5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making
any special provision, by law, for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to
their admission to educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. Article 16 of Indian Constitution : Equality of opportunity in matters of public employment.
1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the                State.
2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or
classes of employment or appointment to an office under the Government of, or any local or other
authority within, a State or Union territory, any requirement as to residence within that State or Union
territory prior to such employment or              appointment.
4) 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.
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters
of promotion, with consequential seniority, to any class or classes of posts in the services under the State
in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the          State.
(4B) 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.
5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office
in connection with the affairs of any religious or denominational institution or any member of
the governing body thereof shall be a person professing a particular religion or belonging to a particular
denomination.

[3] Kesavananda Bharati v. State of Kerala 1973 SC 1461

[4] Indra Sawhney v. Union of India AIR 1993 SC 477

[5] M. Nagaraj v. Union of India & Ors.(2006) 8 SCC 212

[6] Articles 14 to 18 of the Constitution of India comes under the sub-heading “Right to Equality”

[7] Article 14 of the Constitution of India

[8] M.R. Balaji v. State of Mysore  1963 AIR 649

[9] Article 15 of Indian Constitution, Bare Act

[10] State of Kerala v. N.M. Thomas 1976 AIR 490

[11] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

[12] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

[13] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461; Minerva Mills v. Union of India, AIR 1980 SC    1789, Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.

[14] M Nagaraj and Ors. v. Union of India, AIR 2007 SC 71

[15] Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396

[16] M Nagaraj and Ors. v. Union of India, AIR 2007 SC 71

[17] Sandra Fredman, Substantive Equality Revisited, Volume 14, OXFORD I.CON, 712, 732-733, (2016)

[18] Sandra Fredman, Discrimination Law (2nd ed., 2011).

[19] Sukhnandan Thakur v. State Of Bihar And Ors, AIR 1957 Pat 617, Virendra Singh Varma v. Additional Director of Agriculture, U.P., AIR 1960 All. 647

[20] Sandra Fredman, Discrimination Law (2nd ed., 2011)

[21] Parliament of India, Constituent Assembly Debates, Vol. VII, 30th November 1948 (speech of B.R. Ambedkar), http://parliamentofindia.nic.in/ls/debates/vol7p16b.htm.

[22] Parliament of India, Constituent Assembly Debates, Vol. VII, 30th November 1948 (speech of Chandrika Ram), http://parliamentofindia.nic.in/ls/debates/vol7p16a.htm.

[23] Indira Sawhney v. Union of India, AIR 1993 SC 477.

[24] M Nagaraj and Ors. v. Union of India, AIR 2007 SC 71

[25] Minerva Mills v. Union of India, AIR 1980 SC 1789

[26] The Constitution (one hundred and third amendment) Act, 2019

[27] Constituent Assembly Debates, Constituent Assembly of India Debates (Proceedings) – Volume VII, November 30, 1948,  https://cadindia.clpr.org.in/constitution_assembly_debates/volume/7/1948-11-30

[28] Constituent Assembly Debates, Constituent Assembly of India Debates (Proceedings) – Volume
VII, November 30, 1948, https://cadindia.clpr.org.in/constitution_assembly_debates/volume/7/1948-11-30

[29] Indira Sawhney v. Union of India, AIR 1993 SC 477

[30] M. R. Balaji And Others v. State Of Mysore, 1963 AIR 649

[31] Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.

[32] The General Manager, Southern Railway v. Rangachari, 1962 AIR 36, M. R. Balaji And Ors. v. State Of
Mysore, 1963 AIR 649, C. A. Rajendran v. Union Of India & Ors., 1968 AIR 507, T. Devadasan v. The Union
Of India and Anr., 1964 AIR 179, State Of Punjab v. Hiralal & Ors., 1971 AIR 1777.

[33] Indira Sawhney v. Union of India, AIR 1993 SC 477.

[34] Indian Constitution. article16, cl. 4-B.

[35] M Nagaraj and Ors. v. Union of India, AIR 2007 SC 71

[36] M Nagaraj and Ors. v. Union of India, AIR 2007 SC 71; Indira Sawhney v. Union of India, AIR 1993 SC 477.

[37] Youth for Equality v. Union of India, 11 January 2019


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