Reservation in India
This Article on story of Reservation in India refers to Articles 14, 15, 16 and Constitution 117th amendment Bill, 2012. At the time of latest update of this article, this bill had lapsed.
Article 14 of our constitution says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. By clause (1) of article 15, the constitution says that State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
By Clause (2) of the Article 15, Constitution makes the accessibility to shops, public restaurants, hotels and places of public entertainment, wells, tanks, bathing ghats, roads and other places of public use which are fully or partly funded by the Government to all people belonging to any caste, creed, race, sex or whatever.
Then, Constitution makes further clarification by clause 3 of Article 15 that State is empowered to make special provisions for women and children.
The constitution was enacted with the above three clauses in the article 15. At the same time, we find that Article 46, which is one of the directive principles of state policy, says that state should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice.
But, if the government had done so, it would have been challenged in the court to be discriminatory. So, in order that any special provision that the State may make for the educational, economic or social advancement of any backward class of citizens may not be challenged on the ground of being discriminatory, the government brought the first amendment of the constitution in 1951 and added new clauses 15(4) and 15 (5) which became the foundation bricks of Reservation Policy in India.
By article 15(4) & Article 15(5), the state was empowered to make special provisions for the advancements of any socially and educationally backward classes of the citizens or for the SCs and STs.
While the Article 15 is general in its scope, in the Article 16, the equality of opportunity has been emphasised. Article 16 says that no person will face discrimination in the matter of opportunity. Then this Article mentions seven prohibited grounds viz. religion, race, caste, sex, descent, place of birth, residence or any of these seven, on which discrimination is disallowed in India.
Discrimination on the basis of residence
Article 16(3) says that only the parliament can make any law prescribing employment or appointment for a government job on the basis of residence. This means that if parliament finds it suitable, it can discriminate on the ground of residence. Here, you should note that parliament is empowered to make a recruitment within a state or union territory in which person’s “residence” may get preference. But at the same time, the State Governments are NOT allowed to make such a recruitment in which residence of a person gets preference in state government jobs.
For example, in October 2011, the Bengal Police had given a recruitment notification in which provides for jobs for not only specific districts but even particular areas. This was against the article 16(3) of the constitution. In “Kailash Chandra Sharma versus the State of Rajasthan and others”, the Supreme Court observed that residence within a district or rural areas of that district should not be a valid basis for classification for the purpose of public employment. Residence be it within a state, region, district, or lesser area within a district can not be a ground to accord preferential treatment or reservation, as provided under Article 16(3).
Reservation in appointments
Then, in Article 16(4) the State is empowered to make any provisions for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Via various amendments, the article 16 has been further tweaked and it is now a law that:
- State can make any provision for reservation in matters of promotion
- Filling backlog vacancies via reservation
The above two have been enabled by the constitution only on satisfying two conditions. One of them is that State should have an opinion that that particular class is backward. Second is that the State is of the opinion that the said class is NOT adequately represented in the Government job. The Government had always an opinion that the SCs and STs have not been adequately represented in the Government Jobs so used these provision to enable reservations in the Government Jobs.
Can reservation be at the cost of efficiency?
Please note that Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration. This means that in the light of Article 335, the constitution forbade the Government to make unreasonable reservation at the cost of efficiency in the administration.
Reservation for OBC: Mandal Commission
On 20 December 1978 India’s prime minister, Morarji Desai of the Janata Party, announced the formation of a second Backward Classes Commission whose chairman was B. P. Mandal, a former member of Parliament. The commission’s assignments were:
- to determine criteria for defining India’s “socially and educationally backward classes”
- to recommend steps to be taken for the advancement of those classes;
- to examine the desirability of reserving state- and central-government jobs for those classes;
- and to present a report to the president of India.
On 31 December 1980 the Mandal Commission submitted its report to President N. S. Reddy, recommending ways to advance India’s “socially and educationally backward classes.”
The Mandal Commission concluded that India’s population consisted of approximately 16 percent non- Hindus, 17.5 percent Brahmans and “forward castes,” 44 percent “other backward classes,” and 22.5 percent scheduled castes and tribes. However, since the 16 percent non-Hindus presumably included approximately the same proportion of “other backward classes” as did the Hindus (i.e., another 8%), the total proportion of “other backward classes” (Hindu and non-Hindu) came to 52 percent (44% + 8%) of India’s population, therefore 27% government jobs should be reserved for them.
The Mandal Commission developed eleven indicators of social, educational, and economic backwardness. One indicator was being considered backward by other castes or classes. Other indicators included depending mainly on manual labour for livelihood and having an average value of family assets at least 25 percent below the state average. In addition to identifying backward classes among Hindus, the Mandal Commission identified backward classes among non-Hindus (e.g., Muslims, Sikhs, Christians, and Buddhists) if they had belonged to “untouchable” castes before they converted to a non- Hindu religion, or if Hindu castes with the same occupational names, such as dhobi (launderer), lohar (iron worker), nai (barber), or teli (oil presser), were considered backward.
In February 1980 the Mandal Commission conducted a nationwide socioeconomic field survey in which it gathered interview data from two villages and one urban block in 405 of the nation’s 406 districts. The field survey data, combined with information from the 1961 census, various states’ lists of their backward classes, and personal knowledge of Commission members and others, enabled the Mandal Commission to generate an all-India “other backward classes” (OBC) list of 3,743 castes and a moreunderprivileged “depressed backward classes” list of 2,108 castes.
On 7 August 1990 Prime Minister V. P. Singh announced in the Parliament that his government would implement the Mandal Commission’s recommendations. This was followed by the violent objections in northern part of India.
Indra Sawhney Case 1992
The 27% reservation quota for backward classes and the government notification reserving 10% government jobs for economically backward classes among the higher castes was challenged in the Supreme Court in the Indra Sawhney Case of 1992. On 16 November 1992 the Supreme Court upheld the Mandal Commission’s 27 percent quota for backward classes, as well as the principle that the combined scheduled-caste, scheduled-tribe, and backward-class beneficiaries should not exceed 50 percent of India’s population. At the same time, court also struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes. The opinion of the Supreme Court in the Indra Sawhney case is summarized as below:
- Backward Classes of the Citizens of in Article 16(4) can be identified on the basis of caste and not only on the economic basis.
- Article 16(4) is not an exception to Article 16(1)
- The backward classes in Article 16(4) are not similar to as socially backward classes in Article 15(4) i.e. SC and ST
- Creamy layer can be and must be eliminated from the Backward Classes.
- Article 16(4) permits the classification of backwards classes into more backward classes.
- Reservation shall not exceed 50%. The court said that this rule should be applied every year. However, it may be relaxed in favour of people from far flung and remote areas because of their peculiar conditions. However, extreme caution should be exercised in doing so.
- Carry forward rule is valid but it is subject to 50%
- There should be NO reservation in the Promotions.
Reservation in Promotions
The Article 16(4) came under the Supreme Court’s interpretation in the Indra Sawhney case. The members of the Scheduled Tribes and Scheduled castes of the country were enjoying the facility of reservation in appointments as well as promotions since 1950s. On 16 November 1992, Supreme Court in its judgment in the Indra Sawhney and Others vs. Union of India and Others (1992) case held that the Reservation of Appointments under article 16(4) of the constitution is CONFINED to initial appointments and does not extend to the matter of Promotion.
Thus, Indra Sawhney case made two important normative points.
- The first was the 50 per cent cap on reservations, ground in the rationale that backwardness does not exist in the abstract; it depends on the average on society.
- Second, the Court held that reservations in public employment could only exist at the entry level.
The reasoning was that reservations exist to create a level-playing field, to remedy unequal starting positions, thereby removing the justification for promotion quotas. The court used the light of Article 335 to justify this.
But the government opined that this ruling of the Supreme Court will adversely affect the interests of the Scheduled castes and Scheduled Tribes Community of the Country. The government further opined that representation of the SCs and STs in the services in the state have not reached the required level. This was a conflict of judiciary and interests of the executive / legislative. So to continue the existing share of reservation in the promotions as well, an amendment bill was brought to the parliament, which after being enacted came into force as Constitution (77th amendment) Act, 1995. Later it was further amended to include consequential seniority by 85th amendment.
One by one, the government made four amendments of the constitution viz. 77th, 81st, 82nd and 85th to provide not only for reservations in promotion but also for consequential seniority on that basis. What this means is that a person gets promoted through reservations, then claims to be senior on the basis of that promotion for the purposes of a further promotion, and this continues indefinitely.
Challenging the amendments: M Nagaraj Case
In the M Nagaraj & Others vs. Union of India & Others (2006) the validity of these amendments was challenged in the Supreme Court through various petitions clubbed together on the ground that these altered the Basic Structure of the Constitution. But the court upheld the amendments because they did not alter the basic structure of the constitution.
- The court further held that these provisions are merely enabling provisions. If a state government wishes to make provisions for reservation to SC/STs in promotion, the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class.
- The Supreme Court had made it very clear that Article 16 (4A), which was inserted through these amendments, was only an enabling provision. In essence, every time a government or the legislature sought to provide reservation in promotions under Article 16 (4A), it would have to pass constitutional muster. While justifying each attempt to provide reservation in promotions, the state would have to demonstrate backwardness, inadequacy of representation and maintenance of efficiency.
Implications of M Nagaraj Case
The conditions laid down in Nagaraj case had raised a number of concerns. Since Article 16 (4A) permits reservation in promotions only for the SCs/STs and not for the OBCs, the first condition in Nagaraj requiring the state to demonstrate backwardness of the beneficiaries is problematic because it may lead to bringing in the ‘creamy layer’ test for SCs/STs through the backdoor. However, Supreme Court had held for several times that test of ‘creamy layer’ is not applicable to SCs/STs. The settled position of law is that all members of recognised SC/ST groups automatically satisfy the condition of backwardness and there is no burden on the state to further establish the backwardness of those individuals benefiting from reservation.
The Constitution 117th amendment Bill
The current controversy started from a judgment delivered by a two-judge bench of the Supreme Court in U.P Power Corporation Ltd. v. Rajesh Kumar in April 2012. In the M. Nagaraj Case of 2006, it was already held by the Supreme Court that the state must demonstrate backwardness, inadequacy of representation and maintenance of efficiency before providing reservation in promotions. What the U.P Power Corporation did for the first time was to strike down reservation in promotions for not meeting these criteria.
The UP Power corporation did this because the question of inadequacy of representation, the text of Article 16 is clear that it is a matter for the state to determine.
The response of the government has now come in the form of 117th Constitution Amendment Bill introduced in the Rajya Sabha.
The article 16 4 A as per this new amendment bill speaks as follows:
Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342, respectively, shall be deemed to be backward and nothing in this article or in article 335 shall prevent the State from making any provision for reservation in matters of promotions, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the State.”.
We see that the proposed Article 16 (4A), which seeks to substitute the existing Article 16 (4A), has done away with concerns of efficiency by stating that nothing in Article 335 can be an impediment, and the reference to ‘adequacy of representation’ has been deleted.
Government says that the reservation in promotions at the entry level does not ensure that the project of equality of opportunity is complete. It says that the reservation in promotions would take that project further, and it would not let Article 335 to become a roadblock in this project.