Author: Pratyus Sarangi, Vijayant Goel and Ishaan Vats

Introduction

In India, reservation of seats is a system for representation of the historically marginalized sections of the society in Education, Employment, etc. Initially, the reservation was given only to Scheduled Castes and Scheduled Tribes under Article 15 and 16 of the Constitution of India, 1950. However, in the year 1975, the scope of reservation under Article 16 was extendedby providing reservations to several other people like physically handicapped, children of freedom fighters, army personnel, etc.[1]

A significant change in the reservation policy came in the 1980s when the Second Backward Classes Commission under the chairmanship of Shri B.P. Mandal submitted its report and recommended to reserve the seats for several Backward Classes other than the Schedule Castes and Schedule Tribes which was accepted by the government in the year 1990 and later upheld by the Supreme Court of India in the case of Indra Sawhney v. Union of India.

Factual Background

In 1990, Prime Minister V.P. Singh, based on the recommendations made by the Mandal Commission in 1980, issued an Office Memorandum to reserve 27% seats for Socially and Economically Backward Classes in addition to those already reserved for Schedule Castes (hereinafter SCs) and Schedule Tribes (hereinafter STs). Mandal Commission (hereinafter Commission) was the second Backward Classes Commission constituted by the Government of India under Article 340 of the Constitution. The Commission under the chairmanship of Shri B.P. Mandal listed 3743 castes (based on 1961 Census) as Socially and Economically Backward Classes (hereinafter SEBCs) for which reservations were to be made.

Later in 1991, the Office Memorandum of 1990 was modified by introducing:

  1. Economic criteria in the reservation grant by giving preference to the economically poorer sections of the SEBCs in the 27% quota.
  2. Reservation of another 10% of seats of the vacancies in the civil services for Other Economically Backward Classes that were not covered by any reservation schemes of that time.

To finally decide the legal status of the reservations in India and check the constitutional validity of both the Office Memorandums, a nine-judge bench was constituted by the Supreme Court in the year 1991.

Issue of Law

  1. Whether Article 16(4) is an exception to Article 16(1)?
  2. Whether ‘any provision’ under Article 16(4) necessitates the law to be either made by the Parliament, or it can also be made by an executive order?
  3. Whether caste by itself constitutes a class under Article 16(4) of the Constitution?
  4. Whether economic criteria in itself constitute a backward class under Article 16(4) of the Constitution?
  5. Whether ‘backward classes’ of Article 16(4) permit a classification of backward classes and more backward classes?
  6. Can reservation under Article 16(4) exceed 50% of the total posts available for that service in a particular year?
  7. Whether reservations under Article 16(4) also extend to matters of promotions?


Analysis

Article 16(4) cannot be considered as an exception to Article 16(1) as it only carves a particular class of society for which the reservation is kept and doesn’t interfere with the whole percentage of it. Both provisions must be read harmoniously as they are restatements of the principle mentioned in Article 14. Article 16(4) maintains the balance of representation of the backward class people with respect to Article 16(1).

It is the duty of the State to protect each citizen therefore protection against the law cannot be solely based on economic condition as it fails the test of reasonable classification under Article 14. The court determined that to get reservation one must be ‘socially backward’ as a broad term under which it also comprises the status of economic and educational backwardness to be considered.

The apex court regarding validity of Office Memorandum (Executive Order) held that the provision under Article 16(4) can also be passed through an executive order as the executive is also an instrumentality of the State enshrined under Article 12. Also, the term “Law” under Article 13(3) includes an executive order. Therefore, the two Office Memorandums that were issued by the V.P. Singh Government was constitutionally valid.

The Court in the instant case opined that caste can be used as a criterion to identify backwardness. The Court was of the view that identification of backwardness requires consideration of both occupation and income of the individual. In the consideration of social backwardness, caste plays a vital role but the society in which the person lives is also equally important. It is important to note that a person can only be provided with reservation if that person is leading a socially backward life and caste at times signifies the person’s social backwardness but not always. This might sound like an individual centric contention, but a deep analysis of it proves the contrary. It is not an unknown fact that economic advancement after a certain time leads to social upliftment and this leads to the concept of ‘creamy layer’, who are excluded from reservation. But, while deciding the stakeholders of creamy layer, the Court only emphasized on public employment and had given examples of IAS/IPS officers belonging to OBC. Further, the concept of ‘creamy layer’ was not extended to the representatives of people. The offspring of the Prime Minister and President are eligible for reservation if they belong to SC and ST. When a whole idea behind reservation is to counter social backwardness then why is this the case?  How can the children of the head of the executive and legislature can be considered socially backward and what a lower casteelse would be sufficient for their social upliftment? These are valid questions that the Bench should have discussed in the judgement. Further, the ‘public employment’ point is a very narrow point of consideration, when the Court did not consider people working in private corporations can also form a part of the ‘creamy layer’. The consideration of this point becomes even more important because the judgment came just after a year when India adopted the Liberalizationconcept. As India opened its market for foreign investors, this idea would have not been too remote for the Court to think of at that time that private companies in the country are going to prosper in the recent future and so the employees of those companies, who will form a large chunk of the ‘creamy layer’ cluster. The treatment of such members with the other members just because they belong to a backward caste does treat equals with unequals that is contrary to Article 14 of the Constitution and the benefit of reservation is being chewed up by the effluent sections and the backward classes are getting more backward.

A caste may itself constitute a class. The caste cannot be the sole basis to grant the reservation therefore if a class satisfies the conditions of the backwardness it becomes a backward class.The court divided the backward class under Article 16(4) into ‘backward class’ and ‘more backward classes’ among the people who qualified the test of backwardness. The Court allowed the Government to decide as who qualifies for being under backward class. The same may vary from time to time by an Executive Order issued by the Government.

The Court further rejected the additional reservation of 10% for “other economically backward sections” stating the reservation cannot be given to the citizen based on their income and property holding. The same will be inconsistent under Article 16(1). 

While answering the Issue VI, the apex court relied on the observation made in the case of M.R. Balaji,[2] held that the reservation upto 50% is not just a rule rather it is binding in nature which can be relaxed only in certain extraordinary circumstances. Though the language used in the M.R. Balaji Case regarding the 50% rule implied it to be the obiter dicta. However, Justice Pandian in his dissent held that reservation upto 50% only is neither based on scientific data nor on any agreed formula. Moreover, in his dissent he said that Article 16(4) does not limit the government to provide reservation upto 50% only and therefore, any ceiling cannot be fixed for the reservation made under Article 16(4).

Though the Court put a ceiling on the reservation, it failed to limit the powers of Legislature as the phrase “extraordinary circumstances” were not defined. The definition of the said phrase might have restricted its scope, but that can be rectified by giving an inclusive definition to the phrase. Also, the Court failed to specify the extent to which relaxation can be made to the 50% rule while considering the extraordinary circumstances. The dissent of Justice Pandian further expanded the powers of Legislature as it was made clear that the Constitution does not limit the reservation upto 50% only. However, it was also made clear that 100% reservation cannot be provided as it will create a monopoly of the reserved class and will also be violative of Article 14 of the Constitution.

The combined effect of the decision of the nine-judge bench was seen in the year 1993 when the State of Tamil Nadu enacted a legislation that provided 69% reservation to SCs, STs and Backward Classes in Educational Institutions and Appointments.[3] The enactment was contrary to the ratio given in Indra Sawhney Case as it exceeded 50% rule and was cleverly inserted in the Ninth Schedule of the Constitution which provides protection to certain laws even if they are in violation of Part III of the Constitution. Again in 2019, reserving additional 10% seats for economically weaker sections of the society,[4] put the majority of the population at a disadvantageous position. For example, at present 79% of the seats are reserved in the State of Tamil Nadu which leaves only 21% seats available for general candidates. Furthermore, as there is no concept of general seats in India, the 21% available seats are open seats for which even reserved categories compete for which may lead to a very small number of general candidates represented in the Educational Institutions and Public Services.

The question of promotion was not an issue, but the court denied giving reservations in promotion as it would have been unconstitutional but allowed certain exemptions and relaxations to compete for the post with forward classes. It laid down that the promotion will be based on selection or merit cum seniority basis, granting reservation will spoil the efficiency of administration. The Legislature while making a provision for reservation of a certain class should keep in mind the efficiency of the administration instead of its vote bank as it has been provided by the Constitution under Article 335 which can be seen in the services requiring specialisation or is related to Security of the State such as armed forces.

Conclusion

The issue of caste is a highly debatable topic and has a great impact on India’s socio-political scenario. Reservation is an important issue in a country like India which has people who belong to different castes and are not fairly represented due to lack of incentives. The Supreme Court of India in the landmark judgement upheld the validity of the Commission Report which was in controversy since a long period.

The executive power which has been given to Government has often been misused to get huge vote banks.  One of major on which the petition was filed was whether the additional 10% reservation proposed for “other economically backward sections” by Narasimha Rao Government. Recently a 10% reservation has also been extended to the Economically Weaker Sections of the society by the Constitutional (One Hundred and Third Amendment) Act, 2019. Therefore, at present 59.5% of seats are reserved for Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Economically Weaker Sections.

Though the Supreme Court gave the right to setup the criterion for determining the backwardness the judgement still holds a validity in shaping the future course in India.


[1] State of Kerala v. NM Thomas AIR 1976 SC 490.

[2]M.R. Balaji v. State of Mysore, AIR 1963 SC 649.

[3]Tamil Nadu Backward Classes, Schedule Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of appointment or posts in the Services under the State) Act, 1993.

[4]Constitution (One Hundred and Third Amendment) Act, 2019.

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