This article is written by Yash Kapadia. Through this article, we shall explain the topic of horizontal reservations in light of the recent developments implemented in Bihar and our point of view on the same.
Reservation favouring certain castes, communities and sects in India existed even before we attained independence from the British. It is instilled in our minds that reservation is an affirmative action wherein a certain set of individuals who are or have been backward and outcasted since several eras in terms of education, employment, social status, etc.
Reservation is mainly given to 3 sets of people, the Schedule Caste (SC), Schedule Tribe (ST) and Other Backward Classes (OBC). However, in 2019, the poor in the General category (EWC) were also given a certain amount of reservations.
Through this article, we shall discuss what exactly is reservation and the major laws governing them under the Constitution of India. Furthermore, we shall understand the concept of horizontal and vertical reservations in light of the recent developments that took place in Bihar in 2021 ending it with a personal point of view on these developments.
Disclaimer: This article is only for educational purposes and does not discourage or encourage reservation. If any statement may be interpreted so, it may be purely coincidental.
What is reservation as per the Constitution of India
In India, reservation is meant to be the act of reserving a fixed number of seats in government jobs, legislatures, and educational institutions for the weaker section of society who have been socially, educationally and in many other ways backward.
The following are some of the constitutional provisions governing reservation laws in India:
- Part XVI of the Constitution lays down special provisions relating to various posts, services, education grants, etc to certain classes in the legislative assemblies of the Centre and states. Article 330 states that special seats shall be reserved for SC, ST and Anglo-Indian communities in the House of the People.
- Article 15(4) of the Constitution states that nothing can prevent the State from making any special provisions for the betterment of educational and socially backward classes of people in India or SC, ST.
Article 16(4) similarly states that the State can make special reservations for certain appointments and posts in favour of any backward classes of people which in its opinion are inadequately represented in the services under the State.
- The 77th Amendment of the Constitution in 1995 wherein Clause 4A was added to Article 16(4) wherein it provided for promotion of any class/classes of posts in services of the State for ST and SC who are not adequately represented.
- The 81st Amendment inserted Article 16(4B) which gave power to the State to fill the vacancies of the year reserved for SC/ST in the following year thereby negating the 50% reservation on the total number of vacancies of that year.
- Article 233T provides for a special reservation to SC and ST in every Municipality.
- Article 243D provides for specially reserved seats to SC and ST in Panchayats.
- Article 335 states that the claims of SC and ST shall be taken into consideration consistently by maintaining efficient administration in making their appointments for services and posts in the Union or State.
What is horizontal and vertical reservation
The reservation policy in India is divided into two parts:
- Vertical reservation
- Horizontal reservation
These criteria are put forth for reserving certain seats in government jobs, services, posts and competitive national level exams. We shall briefly explain both these concepts along with a landmark judgement passed by the Hon’ble Supreme Court of India in December 2020.
Vertical reservation means reservations that are meant for Scheduled Caste, Scheduled Tribes and Other Backward Classes. This type of reservation is applied separately for each of these groups specified under the law. For example, Article 16(4) is a type of vertical reservation.
Horizontal Reservation refers to equal opportunities provided to different categories of beneficiaries such as women, veterans, transgender community and persons with some kind of disability, cutting through the vertical categories. For example, Article 15(3) is a type of horizontal reservation.
The horizontal reservation is to be applied separately across each vertical category. Let’s take an example, if women have 50% reservation in horizontal quota, then half of these selected candidates would have to be women in each vertical quota category which means that half of all selected SC/ST candidates will have to be women and half of the unreserved or general category will have to be women, and so on.
The Hon’ble Supreme Court of India, clarified the interplay of both these reservations in the case of Saurav Yadav and Ors. v. State of Uttar Pradesh and Ors, 2020.
Saurav Yadav case summary
- Facts of the case
In the instant case, two candidates, Sonam Tomar (under OBC- Female category) and Rita Rani (under SC- Female category) participated in the selection process in 2013 for filling up posts of constables in Uttar Pradesh police. Both of them had secured 276.5949 and 233.1908 marks respectively. It is pertinent to note that the reservation categories of OBC and SC are vertical reservation categories, while female is a horizontal reservation category.
The two candidates failed to pass in their respective categories. However, it came to their knowledge that in the General-Female category, the last qualifying female had secured 274.8298 marks which was actually lower than Sonam’s score. Their grievance before the Court was that candidates with marks lower than what they secured had been selected in the General Female category disregarding their claim.
For the readers, it is pertinent to note that the State of Uttar Pradesh has horizontal reservations for women candidates, and the State, in its submissions before the Court stated that it would not able to carry forward the vacancies under horizontal reservation to the next selection, in a scenario wherein the right number of candidates for the horizontal reservation were not available. The cut-off mark for eligible females of General category was 274.8928. While all male candidates belonging to OBC, SC, ST category who successfully secured more than 313.616 i.e. the cut-off marks for male candidates in the general/open/unreserved category were selected. However, the same standard was not applied to the SC/ST/OBC women category candidates, although they had obtained more than the cut-off marks for the female candidates in the general or open or unreserved category.
The action on part of the Uttar Pradesh Government in refusing to consider the claim of ‘OBC Female Category’ candidates in respect of ‘General Female Category’ seats is correct or not.
The Supreme Court Bench put forth direction to offer employment to all candidates belonging to the OBC female category who had secured more marks than the marks secured by the last candidate appointed in ‘General Category-Female’ for the posts of constables in Uttar Pradesh police. SC female category students’ claims were rejected as none of them secured the required marks.
Justice Bhat agreed with Justice Lalit’s main judgment which the latter authored on behalf of the bench, and added a few reasons to conclude it.
According to Justice Bhat, the silent features of vertical reservation are:
- The open category or other categories cannot file it other than those by candidates of the concerned social category only i.e. SC/ST/OBCs.
- Migrating from a reserved category to the open category is allowed based on merits.
- In case of migration from reserved to open category, the vacancy in the reserved category should be filled by someone from the same category who is lower in rank.
- If the vacancies are not filled by particular categories due to less candidates then the vacancies can be carried forward or dealt with appropriately by rules.
Justice Bhat stated “Horizontal reservations on the other hand, are not inviolate pools or carved in stone. They are premised on their overlaps and are ‘interlocking’ reservations. They cannot be carried forward.”
The Apex Court dismissed the submissions of the UP government and held that:
If both vertical and horizontal quotas were to be applied together then a high-scoring candidate actually qualifying without reservations would not be included in the list and would lead to selecting those candidates with lower scores.
On the other hand, if a high-scoring candidate is allowed to drop one category, the overall selection would include high scoring candidates. In other words, the meritorious candidates would be selected.
Recent developments in Bihar
Bihar’s Chief Minister, Nitish Kumar announced around June 2021 that there will be 33% horizontal reservation for women in the State’s engineering and medical colleges.1 Bihar already has 60% reservation in the State’s higher educational institutions which has six vertical categories like SC, ST, OBC, EWS, EBC, etc. This newly announced reservation shall not be in addition to this 60% but it will be spread across all vertical categories which also include 40% unreserved seats for the open categories.2 In simpler words, if an institution has 100 seats which are reserved for SCs then 33 of those must be filled by SC women as per the new reservation law which has been formulated in accordance with Article 15(3) of our Constitution.
Point of view
This development is a steady step towards giving special rights to women in India. Bihar has taken a lot of steps towards empowering women in the last three decades like in 1992, allowing two consecutive days of menstrual leave for women employed in government jobs. In 2006, 50% reservation was provided to women in Panchayati Raj institutions and Bihar was the first to do so. In 2006 again, the Mukhyamantri Balika Cycle Yojana was introduced for Class 9 and 10 girl students which provided for a conditional cash transfer programme for secondary education of girls which has helped to encourage girls to complete their education.
Providing horizontal reservation for women to a certain extent where it does not exploit the rights of meritorious candidates of open category is a good step for a brighter future.
Such reservations will improve the Female Labour Force Participation (FLFP) and female literacy rate which was 20.3% in 2019 before the pandemic.3 Such reservation provides a gateway to women who have faced the atrocities of belonging to a backward class to achieve the level of education and go on to work at esteemed government jobs and posts thereby improving literacy rate as a whole.
Increasing the workforce of women has always helped boost the economy of any nation. Certain reservations must also be made towards women and transgenders in private institutions. Such reservations as employed by the Bihar government bring about revolutionary changes in a country and act as a firm example to other states in the country with a large population of working age women.
Today, the Right to Equality is a basic fundamental right which is recognised by everyone and the law prohibits any form of discrimination. However, in the deeper sections of our society, women and people belonging to the lower caste are yet discriminated against. These hardships are not brought to public knowledge but they exist. Over a period of 5 decades, laws and provisions have been made to give women, children and lower caste people the rights and opportunities they duly deserve.
These provisions have over a period of years only resulted in the betterment of our society as a whole by increasing the literacy rate, the diversity ratio at public and private forums and a lot more for India. A lot of development is yet to come and more and more women and children are inclined towards the field of education. Going a step further, women too have been interested and helpful in providing their aid to other weaker sections of our society which sets a strong example for the younger generation.
Through this article, we now understand the concept of horizontal and vertical reservation in light of the landmark case law of Saurav Yadav. We also understand the latest development enacted by the Bihar Government which shall go a long way in diminishing gender disparity in the years to come.
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