In this blogpost, Sonal Srivastava, Student, Amity Law School, Lucknow, writes about the reservation policy in India in the pre-independence era, post independence era and all other laws relation to reservation. It has been further updated by Neelabh Keshav Sinha, a first-year student from Symbiosis Law School, Noida who is pursuing BBA LLB.

Introduction

Reservation Policy in India is a process of reserving certain percentage of seats (maximum 50%) for a certain class such as Scheduled Castes, Scheduled Tribes, Backward classes, etc. in Government educational institutions, government jobs, etc.

The reservation policy is an age old policy being practiced in India. Its origin has its roots scattered from the ancient times when the practice of ‘untouchability’, caste system and Varna system was dominant in the society. In ancient times, the Hindu society was divided on the basis of Varna, Jatis or classes and they were as follows in the descending order of their social hierarchy- the Brahmans, the Kshatriyas, the Vaisyas and the Shudras. There was another class of people or rather no class people known as “untouchables” or “avarna” that is who has no class. These untouchables were considered to be impure for society and were excluded from the social system. They had to reside outside the village and had no social rights. In some parts of the country such as Southern India, if even their shadow was casted on the upper-class people then it was considered that the person has got impure. There were strict restrictions on them for social gatherings and social life and if they violated any social norm, they were severely punished and in some cases were even killed. The division of society on the norms of purity and impurity was a very cruel system, and it had adverse effects on the development and growth of these lower class people where the skill and labor of an individual were recognized merely on the ground of him being a member of a lower caste. The epics like Mahabharata also quote of many instances wherein a warrior like Karna was not allowed to showcase his talent merely on the ground of him being a Shudra. He was often referred to as ‘Shudra Putra’ and humiliated because of his caste. The then prevalent caste system was a major reason for the advent and advancement of the Reservation Policy in India. The idea of giving reservations to a certain class of people originated because of the prevalent atrocities being done on the certain class of people. To give them an equal opportunity, an equal status in society, to uplift them socially, to bring them at par with other sections of society and moreover to bring development in the lower strata of society, were the reasons for the adoption of Reservation Policy in India.

So let us have a look at the various aspects of Reservation Policy in India.

Reservation Policy in Pre- Independence Era

The legal origin of Reservation Policy in India began with lying down of the Government of India Act, 1919 which came during the turbulent period of World War I. During this period, the British were more focussed on Europe rather than on India yet they passed much important and significant legislation that aimed at the development of the Indian Territory. This Act of 1919 not only introduced several reforms for the Indian Governmental institutions but also addressed many issues of minorities including the formation of communal electorates. Though the system was criticized firmly by Montague-Chelmsford as a system that could be a hindrance to the self-development policy but because Muslims already had a communal electorate through the Minto- Morley reform of 1909 and, therefore, they found it unfeasible to take away the separate electorates of Muslims.

After the Act of 1919, the controversial Simon Commission came up in 1927 to scrutinize the Montague- Chelmsford reforms. After touring the entire Indian provinces, their representatives proposed for combining separate electorates and reserving seats for depressed classes and demand for the wider franchise was there as the economic, educational and social position of these depressed classes did not allow them to vote properly. To stamp and scrutinize the report of Simon Commission and the reforms proposed by them and how to incorporate them into new Constitution, a Round Table Conference was convened in London in 1931. There were many Indian delegates from various interests groups. The conference was chaired by Prime Minister Ramsay Macdonald. There were appeals for separate electorate from B.R Ambedkar but Mahatma Gandhi strongly opposed the appeal for separate electorate for depressed classes and because of this strong opposition from Mahatma Gandhi and Congress the issue of minority remained unresolved in the Conference.

After this the Communal Award and the Poona Pact of 1932 came into force wherein the Prime Minister Macdonald announced the communal award where the separate representations were to be provided to Muslims, Sikhs, Indian Christians, Anglo- Indians, Europeans and Dalits Depressed classes’ were assigned a number of seats that were to be filled by election from special constituencies in which voters belonging to the depressed classes could only vote

The award brought in criticism from Mahatma Gandhi but was strongly supported by Dr. BR Ambedkar and other minority groups. As a result, of the hunger strike by Mahatma Gandhi and widespread revolt against the award, the Poona Pact of 1932 came into being which brought in a single general electorate for each of the seats of British India and new Central Legislatures. The stamping of the provisions of Poona Pact, 1932 were done in The Government of India Act of 1935 where reservation of seats for depressed classes was allotted. This was the scenario before the independence of India.

Post- Independence Era

Post- Independence the scenario changed and the reservation policy gained even more momentum than the pre-independence era. The Constituent assembly chaired by Dr. B.R Ambedkar framed the reservation policy and many Articles in the Indian Constitution were dedicated for the same.

Article 15(4) – Special Provision for Advancement of Backward Classes-

Article 15(4) is an exception to clauses 1 and 2 of Article 15, and it was added by the Constitution (1^st Amendment) Act, 1951, as a result of the decision in State of Madras v. Champakam Dorairajan[1]. In this case, the Madras Government had reserved seats in State Medical and Engineering colleges for different communities in various proportions on the basis of religion, caste and race. The state defended the law on the ground that it was enacted with a view to promote the social justice for all the sections of the people as required by Article 46 of the Directive Principles of State Policy. The Supreme Court held the law void because it classified students on the basis of caste and religion irrespective of merit. To modify the effect of the decisions, Article 15 was amended by the Constitution (1^st Amendment) Act, 1951. Under this clause, the state is empowered to make provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. After the amendment, it became possible for the state to put up a Harijan Colony in order to advance the interest of the backward classes.

Constitution (93^rd amendment) Act, 2006: Provision for Reservation of Backward, SC and ST classes in private educational institutions (article 15(5))

The new clause 5 provides that nothing in Article 15 or in sub- clause (g) of Clause 1 of Article 19 shall prevent the state from making any special provisions, 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 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..

The above-mentioned amendment has been enacted to nullify the effect of three decisions of the Supreme Court in TM Pai Foundation v. State of Karnataka[2], Islamic Academy v. State of Karnataka[3] and P.A Inamdar v. State of Maharashtra[4].  In T.M Pai and P.A. Inamdar case, it had been held that the state cannot make reservations of seats in admissions in privately run educational institutions. In Islamic Academy case, it had been held that the state can fix quota for admissions to these educational institutions but it cannot fix fee, and also admission can be done on the basis of common admission test and on the basis of merit. This Amendment enables the state to make provisions for reservation for the above categories of classes in admission to private educational institutions. The Amendment, however, keeps the minority educational institutions out of its purview. Article 15 prohibits discrimination on the ground of religion. The evil effect of reservation is well known. The politicians who claim to take the country to the 21^st century for which higher education is based on merit is essential, is taking a retroactive step in providing reservation to less meritorious students to private educational institutions. This appeasement policy of the government may get them some benefit in elections, but it would be harmful to the Nation.[5]

Reservation of posts in public employment on the basis of residence (Article 16(3))[6]

Article 16(3) is an exception to clause 2 of Article 16 which forbids discrimination on the ground of residence. However, there may be good reasons for reserving certain posts in State for residents only. This article empowers Parliament to regulate by law the extent to which it would be permissible for a state to depart from the above principle.

Reservation for backward classes in public employment (Article 16(4))[7]

Article 16(4) is the second exception to the general rule embodied in Articles 16(1) and (2). It empowers the state to make special provision for the reservation in appointments of posts in favor of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State.

Other Articles of Indian Constitution covering the Reservation Policy

Article 17 talks about the abolition of untouchability and declares its practice in any form to be an offense punishable under law.

The Social Security Charter of Directive Principles of State Policy under Article 39-A directs the State to ensure equal justice and free legal aid to Economically Backward Classes and under Article 45 imposes a duty on the state to raise the standards of living and health of backward classes.

Articles 330-342 talk about the special provisions for the certain class of people such as Scheduled Castes, Scheduled Tribes, Anglo –Indians, Linguistic minorities and OBC.

The relevance of Article 335

Article 335 plays a highly relevant role as a balancing act in the process of allotting seats on the basis of reservation. The Article in and of itself states that the State shall take into account the claims of members of Scheduled Castes and Scheduled Tribes to any seats in administrative positions, but only if appointing the said members will improve the administrative efficiency. At no point is the State absolutely required to grant the members these seats solely on the basis of their social standing.

The article serves as a guiding principle to the State in performing its duties under it without restricting the claims of the SCs and STs.

Landmark judgments regarding reservation

Indra Sawhney V. Union of India [8]– The Mandal Case

The 9 Judge Constitution Bench of the Supreme Court by 6:3 majority held that the decision of the Union Government to reserve 27% Government jobs for backward classes provided socially advanced persons- Creamy Layer among them are eliminated, is constitutionally valid. The reservation of seats shall only confine to initial appointments and not to promotions, and the total reservations shall not exceed 50 per cent. The court accordingly partially held the two impugned notifications (OM) dated August 13, 1990, and September 25, 1991, as valid and enforceable but subject to the conditions indicated in the decision that socially advanced persons- Creamy layer among Backward Classes are excluded. However, the court struck down the Congress Governments OM reserving 10% Government jobs for economically backward classes among higher classes.

After the landmark Mandal case, Article 16(4-A) (through 77^th Amendment) and 16(4-B) (through 81^st Amendment) were added. According to clause 4-A, nothing in this Article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes of posts in the service of state in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State, are not adequately represented in the services under the State.”

Clause 4-B seeks to end the 50% ceiling on the reservation for SCs/STs and BCs in backlog vacancies which could not be filled up in the previous years due to the non- availability of eligible candidates.

85^th Amendment Act replaces the words “in matters of promotion to any class” in clause 4- A of Article 16 with words “in matters of promotion, with consequential seniority, to any class.”

M.R. Balaji and Ors. v. State of Mysore
AIR 1963 SC 649

The State of Mysore issued an order declaring all communities except the Brahmin community as socially and educationally backward under Article 15(4) of the Constitution and reserving a total of 75 per cent seats in Educational Institutions in favor of SEBCs and SCs/STs. Such orders were repetitive in nature. They were being issued every year, with little to no variation in the reservations being allotted.

When this order was challenged in the Supreme Court under Article 32 of the Constitution, the 5-judge bench struck it down claiming that backwardness is a social and educational factor, both. Though caste in relation to Hindus may be a relevant factor to consider, in determining the social backwardness of a class of citizens, it cannot be made the sole and dominant test.

It was also stated that while there is no definite spectrum for granting reservation, it should still be defined in a broad way, and must be less than 50 per cent.

State of UP v. Pradeep Tandon
AIR 1975 SC 563.

The State Government had issued an order which called for reservation of seats for students in medical institutions. This reservation was extended to candidates from –

• Rural areas
• Hill areas
• Uttarakhand area

This order was challenged in the Supreme Court. The classification on geographical and territorial areas which was observed by the Court was made so due to the candidates from these areas being regarded as socially and culturally backward classes.

That being said, the court termed the reservation for the candidates from hill areas and Uttarakhand valid, as the absence of means of communication, technical processes, and educational facilities kept the poor and illiterate people in the remote and sparsely populated areas backward.

However, the same comfort of reservation was not extended to candidates hailing from rural areas. It was held invalid that the division of the people on the ground that the people in the rural areas were poor and those in the urban areas were not, as the same was not supported by the facts.

State of Madras v. Smt. Champakan Dorairajan 
[1951] S.C.R. 525

This case was the result of the Madras government issuing an order enforcing communal G.O.s with respect to medical colleges. The order specified proportions for reservation of seats in medical colleges with respect to the caste one belonged to. 

While the objective of the order was to help the backward classes, the special bench of seven judges struck down the order, claiming it to be unconstitutional towards of Articles 15(1) and 29(2) of the Constitution. 

Why is reservation important in India?

The concept of reservation was introduced to combat a long-existing practice of discrimination and stereotyping within the rural Hindu communities, which were divided into castes. Some castes were ranked as higher up, and the others were low-tier, with the former often discriminating against the latter. 

In terms of its importance, the need for reservation can be looked at from one of two perspectives, those being a legal perspective and a socio-cultural perspective.

Legal Sense

The discrimination faced by these marginalized groups was indicative of the constant oppression faced by them, dealt out by those considered to be of a ‘higher’ class than them.

The makers of the Constitution felt that these classes needed to be a part of the law-making procedure, and special provisions had to be granted to them to incorporate them into the process. 

This incorporation was meant as an upheaval process for said backward classes in order to mitigate most of the oppression faced by them during the casteist era. This was done by granting them equal rights, opportunities, and special reservations to ensure their participation in the legal framework of the country.

Socio-Cultural Sense

To delve further into the social and cultural background of casteism and reservation, we have to clearly establish the varna system in the Hindu religion, consisting of the Brahmins, the Kshatriyas, and Vaishyas originally. A fourth sect by the name of Shudras also developed who existed as cleaners, meant to serve the three ‘higher’ sects. 

Apart from these four sects, people who were not classified under the varna system were regarded as ‘Dalits’ or untouchables. Their existence and touch were believed to pollute everything near them. They were relegated to perform tasks which were considered ‘impure’ such as cremation, etc. Over time, this practice has also bled into other religions like Christianity and Islam, who discriminate against those who are considered to be of a ‘lowly birth’.

This created a pertinent reservation in the Indian society and culture to save these persecuted communities from further oppression and to promote their development and education, thus leading to the formation of the reservation system.

Debate on Reservation 

While reservation has been an integral part of the Indian legal system for a long time, in recent times, its necessity has come under scrutiny. While people are not against the idea of reservation, it is the prevalence of caste-based reservation that stirs up controversy.

It is often argued that after more than 70 years of enjoying reservation, the backward classes have been empowered, both economically and socially, to a large extent. As such, the reservation of seats is not a necessity for them, and such seats should instead be reserved for economically weaker sections of people. Their argument is further strengthened due to the existence of the creamy layer system, in which even well-off members of backward classes are entitled to the same amount of reserved seats that other members of their class hold. However, this issue is also looked at through another perspective, and that is not by blaming the reservations for minorities, but the lack of job opportunities generated for the people.

Suggestions and Solutions

When considering a solution to the above debate, it is acknowledged that the problems cited by those against reservation are true. Reservation through a caste-based system has become redundant in the modern age and is taking away opportunities from those who are actually underprivileged in economical terms.

Moreover, the reservation system only divides the society leading to discrimination and conflicts between different sections since it is oppressive and does not find its basis in casteism. It is actually the converse of communal living.

Reservation benefits, if provided, should be restricted to a maximum of two children per family, regardless of the number of children they may have, which would help in regulating the population of OBCs which will eventually result in a decrease in their representation, giving way to the principle of equality.

If we take situations in rural areas as precedence, economically, a person of the general category may suffer economically just as much as a member of an OBC, however, under the reservation criteria, only the person belonging to the OBC will get a reservation in an educational institution or government job. 

The Road Ahead

Difference between quota and reservation – what is the need of the hour?

Reservation and quotas are interrelated mechanisms. Without assigned reservations, a quota cannot exist. Reservation is the act of setting a part of something aside for a specific purpose. A quota for a reservation dictates how much of that particular thing will be set aside in accordance with the reservation.

In India’s case, the act of reservation is reserving seats in educational institutions, and certain places of employment, for certain castes and classes of society which are considered ‘backward’, those being the Scheduled Castes, Scheduled Tribes, Other Backward Castes, etc. Quotas for the same define how much percentage of total seats will be assigned to each individual minority group.

As such, the need of the hour falls less on quotas themselves but on reservation as a practice. Reservation is the need of the hour, but not in its current state.

Reservation needs to be altered in a manner wherein it provides seats for sections of society who are economically weak, instead of reservations on the basis of societal differences.

If such a change, while drastic, was to be implemented, it would lead to the dissolution of a lot of communal strife that exists due to caste-based reservations, while also guaranteeing reserved seats for those who are in actual need of it.

Is reservation alone enough to ensure community development?

When it comes to community development, reservation is a double-edged sword, and the two edges are the different types of reservations offered. 

When a reservation is referred to in its traditional sense, it actually causes more harm than good. When society and opportunities for the people are divided on the basis of caste and class, it creates a division between said classes which hampers communal harmony and growth.

However, if the reservation policy was reversed to guarantee seats to sections of society which were weaker economically, it would create a sense of common upbringing which the people who were economically well-off would feel towards the economic minorities.

Conclusion

The reservation policy in India was adopted with a reason to uplift certain castes who were subjugated to atrocities, social and economic backwardness due to the prevalent dominance of caste system in Hindu Society.

This reason has somewhere lost its essence in the modern era, and the castes that should be actually benefitted are not being benefitted, and the others are reaping the benefits of the reservation system that is actually not meant for it. Today, the reservation system has just become a tool for politicians to gain vote banks. The recent agitation from the Patels of Gujarat to include them in the category of OBC was shocking for the entire nation, as the people who were agitating to get reservations in the state of Gujarat were in no ways socially and economically backwards.

In the State of Tamil Nadu, the reservation system proved to be a havoc for the society wherein the Brahmans had very cleverly churned themselves down in the league of the backward bandwagon and had gained enormously from the reservation system.

For these possible reasons, the Creamy Layer has been excluded from the list of Scheduled Castes, Scheduled Tribes and OBC after the landmark Mandal Case.

In one of the landmark decisions of Ashok Kumar Thakur v. Union of India, Justice Ravindran smelling the dangers from the present trend on the reservation had rightly opined that when more people aspire for backwardness instead of forwardness, the Country itself stagnates.

It is quite impossible to declare Reservation policy as good or bad as those benefitting from it would always support it and declare it to be good while those who are being at a loss because of the system would always curse it and declare it to be bad. But what matters the most is not that whether the reservation policy is good or bad instead what matters is the idea and the reason behind its adoption. If that reason is losing its essence, then, of course, the reservation policy would gradually turn out to be bad.

The political indulgence in the process of reservation has merely reduced from a noble idea to a strategy to increase the vote bank. Moreover, a lot of criticism has been made on the criteria of reservations. The socially and economically backward classes are not actually in practical and real sense socially and economically backward, the only stamp of being from a backward caste is enough to gain profits in the name of reservations.

The reservation policy is good till the point some deserving candidate is not missing upon his opportunity because of the prevalent reservation system. I find no reason for giving admissions to undeserving students over deserving students. If these classes of people have been denied opportunities in past, then the scenario is being repeated with the general class in the present. The undeserving should not reap the fruits of the labor of the deserving.

We also need to understand that when we talk about development then simultaneously we cannot talk about backwardness. If we would demand more and more backwardness, then it is obvious we cannot move forward, and we will not be able to move forward, our progress would ultimately get stagnant.

It is also important that the essence of the idea of the adoption of reservation policy should be maintained, and the actual backward classes who are in real and not fiction denied access to education, job opportunities etc be benefitted.

This reservation policy should not become a ladder to climb on the stairs of profit, money and other related interests for those who are just roaming with the stamp of being a backward class and are actually socially and economically much more stable than the general class.

“The urge to be one among the backward will gradually lead towards the stagnation in the development of the country.

Endnotes

[1] AIR 1951 SC 226

[2] AIR 2003 SC 355

[3] AIR 2003 SC 3724

[4] Air 2005 SC 3226

[5] The Constitutional Law of India by Dr. JN Pandey, Central Law Agency, page 132.

[6] THE CONSTITUTION OF INDIA BY JN PANDEY, PAGE 155.

[7] THE CONSTITUTION OF INDIA BY JN PANDEY, PAGE 155- 156

[8]  AIR 1993 SC 477

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