What is the Constitutional Right of Reservation?

By Athik Saleh

Introduction

If there is one subject which has been getting the people in India riled up ever since the constitution came into force, that is reservation. Our founding fathers’ attempt at correcting a historical wrong, which later becomes a tool in the hands of political parties and leaders trying to appease their vote banks and supporters respectively, the story of reservation is as tumultuous as the past it was intended to correct.

With the Supreme Court judgement declaring quota for Marathas in Maharashtra as unconstitutional, the age-old question of reservation (and many adjoining questions) are back in the limelight again.

Reservation under the Constitution

India, a country with a rich history, the kind of history to which only a few other countries can stake a claim to, has its share of shame too. The centuries-old discrimination based on one’s caste which was started as a way of identifying a person’s function in the society, which later became a way of degrading those that belonged to the lower rung of this system is the reason behind the addition of reservation in the Indian Constitution.

The Indian Constitution is based on the ideals of equality. The idea of reservation was enshrined in the constitution as a way of creating a society that was not going to discriminate based on the caste they were born into.

Constitution talks about reservation in certain articles spread over different parts and they are as follows:

• Article 15(4)

This article was introduced as a result of the Supreme Court judgement in State of Madras Vs. Champakam Dorairajan, 1951^[1]. This article empowered the state to make special provisions for the advancement of any socially and educationally backward classes of citizens or the scheduled castes or scheduled tribes.

This was the first amendment to the Indian Constitution and was later upheld by the Supreme Court in M.R. Balaji Vs. State of Mysore, 1963^[2].

• Article 15(5)

This was introduced as a result of the Constitution (93^rd Amendment) Act, 2006. Another exception clause to the general rule of non-discrimination provided in Article 15, this clause talks about reservation in educational institutions including private institutions (aided or unaided by state).

Minority-run educational institutions does not come under the purview of this article.

• Article 15(6)

A recent addition to the various provisions which govern reservations in India, this provision along with Article 16(6) were introduced by Constitution (103^rd Amendment) Act, 2019. The purpose of this clause to create another exception to the general rule of Article 15 but this time it was based on economic status rather than social or educational status.

By the addition of this provision a new category of ‘economically weaker sections’ were introduced into the mire of reservation in India.

• Article 16(3) – Reservation based on residence in public employment.
• Article 16(4)

Provide the state with the power to make provisions regarding reservation for people belonging to backward classes who in the opinion of the states aren’t adequately represented in public employment in the state.

• Article 16(4A)

Another exception to the rule provided in Article 16 concerning the states’ power to reserve for scheduled castes and scheduled tribes in services under the state including in matters of promotion if the state is of the opinion that they are not adequately represented.

• Article 16(6)

Another addition in the form of Constitution (103^rd amendment) Act, 2019, which provided for reservation for economically weaker sections of the citizens. The maximum limit put on reservation under this category is ten per cent.

These aforementioned provisions tell only half the story about reservations. To understand more about the constitutional status of reservations, it is imperative to understand the approach of judiciary to this often-controversial matter.

Judiciary and Reservations

The first amendment of the constitution was a result of the Supreme Court’s ruling in State of Madras Vs. Champakam Dorairajan, 1951, in which the Court held that caste-based reservations are unconstitutional. This is where the story starts. The Court was against the idea that caste must be the determining factor as far as reservation was concerned.

The same issue came into the forefront in M.R. Balaji Vs. State of Mysore wherein the State of Mysore’s order which determined backward classes solely on the basis of caste was challenged. The Supreme Court struck down this order based on its interpretation of Article 15(4) where it held that “classes of citizens” do not mean “castes of citizen”.

The Court also held that although caste can’t be disregarded in determining backwardness, it can’t be the sole or primary criteria in determining the backwardness of citizens.

When we go further in time, what we see is a change of approach from the judiciary. The Court which was once disinclined to accept caste as the sole determining factor in case of reservation began to accept a sleuth of government decisions on reservation that were based on caste.

In C.A. Rajendran Vs. Union of India, 1967^[3], the court accepted classification of social and economic backwardness on the basis of caste alone. Similar pronouncements were made by the Court in A. Peerikaruppan Vs. State of Tamil Nadu, 1971^[4] and Triloki Nath Tike & Anr. Vs. State of Jammu and Kashmir & Ors, 1966^[5].

However, the Supreme Court resorted to its earlier approach when it pronounced that using caste as a factor in determining backwardness is against Article 15 in State of Uttar Pradesh Vs. Pradip Tandon, 1975^[6]. These contradicting decisions by the Supreme Court regarding the validity of using caste as a factor in determining social and educational backwardness led to confusions.

Then came the watershed decision in Indra Sawhney Vs. Union of India, 1993^[7]. This case came against the backdrop of the Mandal Commission report. The Mandal Commission identified 52 per cent of the population as SEBC (socially and educationally backward classes) and recommended 27 per cent reservation for SEBC in addition to the already existing 22.5 per cent reservation for SC/STs.

The government orders implementing these recommendations were challenged before the Supreme Court which upheld the impugned orders. The Court, in this case, held that,

“A caste is nothing but a social class – a socially homogeneous class” and that merely because the word “class” is used in Article 16(4), it cannot be concluded that it is antithetical to “caste”. Further, given that caste, occupation, poverty and social backwardness are closely intertwined in our society, the entire caste in many cases, inevitably becomes a socially and economically backward class.

Six out of the nine judges on the bench approved of the usage of caste as a criterion for determining backwardness. However, the Court held that reservations must be subjected to a 50 per cent limit and that creamy layer among OBCs must be excluded.

The Court also held that reservations will be valid only in cases of initial appointments and not in cases of promotions. Article 16(4A) and 16(4B) were introduced through amendments to nullify the impact of the judgement in Indra Sawhney as far as promotions (with consequential seniority) and 50 per cent limit in cases of backlogs.

In 2019, the government introduced the Constitution (103^rd amendment) Act in the parliament which aimed to provide reservation in higher education and public employment for economically weaker sections of the society. This amendment came into force in January of 2019.

This amendment provided a 10 per cent reservation for economically weaker sections apart from the already existing 50 per cent reservation. In a challenge to the Bombay High Court judgement which upheld the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, which provided the Maratha community in Maharashtra with an additional 10 per cent reservation, a five-judge bench of the Supreme Court declared this act as unconstitutional.

The Court, in that case, held that unless in exceptional circumstances, the 50 per cent limit set by the court in Indra Sawhney’s case must not be crossed.

This brings a question mark over various state enactments which provided reservation to economically weaker sections of the society and the 2019 amendment itself.

Conclusion – A necessary evil or a solution that does not work

India’s medieval and colonial past is marred with discriminatory practices against various sections of society. For the future that the founding fathers foresaw for India, those sections which were downtrodden and discriminated against had to be brought up to the mainstream.

For a country as large as India with its vast diversity, an all-inclusive development was the only solution which would get it out of the pit it was in when the British left.

Reservation provided in the constitution, which was a temporary solution in the first place, was meant to lead India in the path of an all-inclusive growth. However, what was a temporary solution once has now become something that is imprinted in the fabric of Indian society.

Most of the discontent against reservation stems from the fact that it is anti-meritocracy. However, it should not be forgotten that meritocracy will provide desired results only if all or at least a major chunk of the population is on equal footing.

That is where reservation come into the picture. The purpose of reservation is to uplift those who were fallen behind. This noble idea has now become more or less a fallacy in implementation.

Many have indeed been uplifted but it is also true that those who were once uplifted continue to reap the rewards of reservation and hence denying those who really need the help.

The new amendment to provide economically weaker sections belonging to general categories is not a solution. Rather, it amplifies an already existing problem. It is another tactic of electoral appeasement by the ruling party where the people are blindsided from the real issue by throwing them a piece of stale bread.

The constitutional right of reservation will only provide intended results if those in power stop using it as election weaponry or a tool of mass mobilization, and when the beneficiaries understand that is a tool for improvement and not the improvement itself.

Unless that happens, reservation will remain as a solution that does not work.

References

• mondaq.com
• blog.ipleaders.in
• indconlawphil.wordpress.com
• corporate.cyrilamarchandblogs.com
• .mondaq.com

1. State of Madras Vs. Champakam Dorairajan AIR 1951 SC 226 ↑
2. M.R. Balaji Vs. State of Mysore AIR 1963 SC 649 ↑
3. C.A. Rajendran Vs. Union of India AIR 1965 SC 507 ↑
4. A. Peerikaruppan Vs. State of Tamil Nadu AIR 1971 SC 2303 ↑
5. Triloki Nath Tike & Anr. Vs. State of Jammu and Kashmir & Ors AIR 1967 SC 1283 ↑
6. State of Uttar Pradesh Vs. Pradip Tandon AIR 1975 SC 563 ↑
7. Indra Sawhney Vs. Union of India AIR 1993 SC 477 ↑