By Khushi Agarwal
Maharashtra Government allowed 10% reservation in education and government jobs to all the Maratha students and candidates under EWS quota. Bihar Chief Minister, Nitish Kumar reserved 33% seats for female students in State’s medical and engineering colleges.
Recently, five judge bench of the Supreme Court struck down the 2018 Maharashtra Government’s law which provided 16% reservation to the 32% population of Maratha community. The Court held that the law was breaching the condition of 50% ceiling set up in Indira Sawhney Vs. Union of India judgment.
The Government by 103rd Amendment of the constitution provided 10% reservation to the Economically Weaker Sections (EWS) of unreserved category in educational institutions and government jobs.
With such news everyday related to reservation, it becomes very essential to first understand the term ‘Reservation’.
This article will be dealing with the meaning of Reservation under the Indian Constitution.
What is Reservation?
Reservation is the act of reserving certain percentage of seats for people of discriminated and backward classes in schools, universities and also in government jobs. For example, one-third seats are reserved for women in Lok Sabha.
These are provided to those who are considered as weaker sections of the society and are not at par with other sections in terms of level of opportunities or any other criteria.
Is Reservation necessary?
Many communities of the country have faced discrimination based on their caste, creed, race, etc. In the earlier times, people were classified as upper class and lower class and as touchable and untouchables. There is a long history of discrimination and stereotyping which people have faced.
People like these were not allowed to enter temples, parks or any other public place. They were not allowed to study and were not given any employment opportunities.
Therefore, in order to provide them equal opportunities and rights and to make them the equal part of the country, there was a need for some special provisions and reservations in the law.
Reservations were required in the government jobs and educational institutions for uplifting these classes of people as they are also the citizens of the country, and they also have Fundamental rights.
Hence, while making the Indian Constitution, Dr. B.R. Ambedkar recognized the need for making certain provisions especially for these classes and thus, allowed the concept of “positive discrimination”.
Dr. B.R. Ambedkar fought for the rights of Dalits and demanded for Separate Electorate. Accordingly, signed a Poona Pact with Mahatma Gandhi in 1930 on behalf of the depressed classes and provided them with reservation of seats in Legislature of British India Government.
Reservation under Constitution of India
Article 14 states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
This Article talks about two things, that is, Equality before Law and Equal Protection of Law.
While Equality before Law means that everyone is equal before law, be it a Prime Minister or a normal citizen, laws will apply equally and in the same manner to everyone, Equal Protection of Law means that equals should be treated equally. The latter allows for positive discrimination.
For example, a ten-year-old boy and a 20 year old boy cannot be treated equally because of their unequal status. In the same manner, a citizen from a discriminated class and a citizen from an impartial class cannot and should not be treated equally.
Therefore, from here the concept of Reservation arises in our Constitution. While the Constitution provides for equality to all its citizens, it at the same time allows for positive discrimination in order to create equal opportunities for all.
Article 15(1) and Article 15(2) provides that no state and no citizen, respectively, can discriminate on the basis of Religion, Race, Caste, Sex or Place of Birth but Article 15(3) at the same time provides that the State can make special provisions for women and children.
The Court in the Yusuf Abdul Aziz Vs. The State of Bombay judgment, made it very clear that the State can make special legislations for women under Article 15(3) of the Constitution and that it is not violative of Article 14 which talks of Equality.
The Court held that the situation of women in this country is such that special legislation is required in order to protect them and hence, did the act of positive discrimination.
State of Madras Vs. Champakam Dorairajan judgment gave rise to Article 15(4) by the 1st Amendment to the Constitution, according to which State can make provisions for the advancement of Socially and Educationally Backward classes or for Schedule Castes (SCs) defined under Article 366(24) and Scheduled Tries (STs) defined under Article 366(25).
This was done after the State on the basis of Religion, Race and Caste allowed reservation of seats in State’s Medical and Engineering colleges for different communities and held that this was done for promoting social justice of all sections.
Although the Supreme Court held the reservation in violation of Article 15(1) but it amended the constitution and added Article 15(4) as an exception to it.
By the 93rd Amendment to the Constitution, Article 15(5) was added. Although Article 15(4) allowed the reservation for Socially and Educationally Backward classes in educational institutions but it was only which were aided by the State.
There was no provision which allowed the reservation for backward classes in Private institutions and therefore, to make this kind of provision, Article 15(5) was added which allowed the State to even make provisions for advancement of Socially and Educationally Backward classes in Private educational institutions.
It states that:
“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”.
The Court made it clear that Article 15(5) does not violate Article 14, Article 19(1)(g) and Article 21 of the Constitution in the case of Pramati Educational and Cultural Trust Vs. Union of India.
Reservation in Public Employment
Article 16(3) and 16(4) of the Indian Constitution provides for Reservation in the public Employment.
Article 16(3) serves as an exception to Article 16(2) which provide six basis, that is, Religion, Race, Caste, Sex, Descent, Place of Birth and Residence, on the basis of which no citizen can be discriminated in Public Employment.
However, Parliament can make laws which can allow certain posts in Public Employment to be reserved for the residents of the State only under Article 16(3).
Article 16(4) states, “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”.
State by this Article is allowed to reserve some posts in Public Employment for Backward classes of citizens who the State may think are not adequately represented and it will not be in violation of Article 14.
By the 77th Amendment to the Constitution in 1995, Parliament allowed Reservation in Promotion in Public Employment for Schedule Castes and Schedule Tribes. This Amendment added Article 16(4A) to the Constitution.
This was after the Indira Sawhney Vs. Union of India case where the Supreme Court observed that Reservation under Article 16(4) does not extend to promotions.
In 2006, in the judgment of M. Nagraj Vs. Union of India, although the Supreme Court allowed the Amendment made to the Constitution, it at the same time provided certain conditions which must be followed while giving reservation in promotion.
Besides all this, Chapter XVI of the Indian Constitution provides for reservation of Schedule Castes, Scheduled Tribes and also for Anglo-Indians, defined under Article 366(2), in various posts of House of Lords, Legislative Assemblies, etc.
Recent Amendments related to Reservation
Many Amendments have taken place in the Indian Constitution with respect to Reservation. Last three big Amendments made in this respect were 102nd, 103rd and 104th. All the three were related to Reservation.
- 102nd Amendment
This Amendment came in the year 2018 and added Articles 338B and 342A to the Indian Constitution.
Article 338B set up the National Commission for Backward Classes (NCBC) for Socially and Educationally Backward classes and defined structure, duties and powers of it. The commission was already set up in 1993 but was not granted constitutional status earlier.
Article 342A gave the power of specifying a particular class as Socially and Educationally Backward to the President and also made it compulsory to have Parliament’s approval before making any change to the list of Backward classes.
Recently, the Supreme Court while striking down the Maharashtra Government’s law of providing 16% reservation to Maratha community, cited this Amendment and made it very clear that the 102nd Amendment took away the power of States to identify any class as Socially and Educationally Backward for providing Reservation.
- 103rd Amendment
This Amendment which came in 2019 allowed 10% reservation to the “Economically Weaker Sections” of the unreserved category of people in Government jobs and Educational Institutions, irrespective of the fact whether they are aided by the State or not.
It Amended Articles 15 and 16 of the Constitution and Articles 15(6) and 16(6) were added. It also stated that “Economically Weaker Sections” will be defined by the State from time to time on the basis of income and other indicators.
- 104th Amendment
This Amendment of 2020 extended the cessation period for the reservation of seats for Schedule Castes and Schedule tribes in Lok Sabha and State Legislative Assemblies by total of 10 years.
The last time it was amended by Ninety-Fifth Amendment in 2009 and it extended the reservation till 26 January 2020. Therefore, the reservation was to end on 26 January 2020 which now by this Amendment has been extended to next 10 years.
This Amendment also abolished the reservation of two seats which were given to Anglo-Indian community in the Lok Sabha.
Many provisions have been made in the Indian Constitution for the backward sections of the society in all the Government jobs and Educational Institutions whether aided or not aided by the State.
This is done for the upliftment of the backward sections and to provide them fair and equal opportunities.
For Example, total seats reserved for Schedule Castes (SC), Schedule tribes (ST) and Other Backward Classes (OBC) are 15%, 7.5% and 27% respectively. Also, adding to this by 103rd Amendment, 10% seats are now reserved for Economically Weaker Sections.
Therefore, for treating everyone as equal and for achieving equality, which is a fundamental right guaranteed to citizens, in a democratic country, positive discrimination has been allowed by the Constitution itself and hence, reservation for certain communities of the country will not infringe any Fundamental right of any citizen.