Reservation in India

The provisions made in the Articles 16, 335, 338, 340, 341 & 342 of the Constitution relate to reservation, protection and safeguards, in public employment in respect of the persons belonging to the SCs/STs and other backward classes. In this Unit we will learn in detail about the all the above articles except Article 340 to 342.

PREAMBLE OF THE CONSTITUTION

The word ‘social justice’ in the Preamble implies recognition of greater good to a larger number without deprivation of legal rights of anybody.

The concept of equality, enshrined in the Preamble has also found expression as a fundamental right in Article 14 to 16, which we shall discuss in the next section.

RIGHT TO EQUALITY-Article 14

The Article 14 of the Constitution is one of the fundamental rights of the Constitution of India.

Article 14 of the Constitution reads: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”

What do the two phrases in this Article namely “equality before the law” and “equal protection of law” mean? On the face of it the two phrases may seem to be identical, but in fact, they mean different things.

While “Equality before the law” is negative concept; “equal protection of laws” is a positive one.

The former declares that everyone is equal before law, that no one can claim privileges and that all classes are equally subject to the ordinary law of the land.

“Equal protection of Law”, on the other hand means, that among equals, the law should be equal and equally administered. That like should be treated as like. Or in other words, persons differently circumstanced need not be treated in the same manner. For example ‘Equal protection of Law’ does not mean that every persons shall be taxed equally, but that persons under the same category should be taxed by the same standard. The guarantee of “equal protection” thus is a guarantee of equal treatment of persons in “equal circumstances” permitting differentiation in different circumstances.The content of the expression “equality before the law” is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39A, 41 and 46.

If there were a reasonable basis for classification, the legislature would be entitled to make different treatment. Thus, the legislature may (i) exempt certain classes of property from taxation at all, such as charities, libraries etc; (ii) impose different specific taxes upon different trades and profession.

Safeguards for public employment(Art-16)

Article 16 of the constitution provides for equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.

The other provisions of the Constitution having a bearing on Article 16 are Articles 38, 46 and the set of articles in Part XVI.

Article 46 contains a very significant directive to the State. It says:

46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. – The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

It is evident that “the weaker sections of the people” do include the “backward class of citizens” contemplated by Article 16(4).

Part XVI of the Constitution contains “special provisions relating to certain classes”. The “classes” for which special provisions are made are, Scheduled Castes, Scheduled Tribes and the Anglo-Indian Community. It also provides for appointment of a Commission to investigate the conditions of and the difficulties faced by the socially and educationally backward classes and to make appropriate recommendations.

Article 16(1) is a facet of the doctrine of equality enshrined in Article 14. Article 16(1) does permit reasonable classification just as Article 14 does. Reasonable classification ensures the attainment of the equality of opportunity assured by Article 16(1). For assuring equality of opportunity in public employment by Article 16 (1), it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Viewed in this background it becomes clear that Article 16(4) is an instance of such classification, implicit in and permitted by Article 16(1). The Supreme Court held in the case of Indra Sawhney that “indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointment/posts in their (Backward Classes) favour. Clause (4) merely puts the matter beyond any doubt in specific terms”.

Any classification, other than on the basis of backwardness, would fall under Article 16(1) eg, reservation made in favour of handicapped persons.

The entire gamut of the constitutional provisions pertaining to reservations was addressed by the Supreme Court in writ Petition  of 1990 {Indira Sawhney Vs UOI-AIR 1993}. The Supreme Court upheld the reservation for ‘other backward classes’ (OBC) in the services. The aforesaid case came as the order issued by the Government of India on 1990 reserving 27% of posts for Other Backward Classes was challenged before the Hon’ble Supreme Court

Refer to Constitution of India , click here

To understand fully the Article 16(4), four of the following terms which appear in the said Article needs to be fully understood:- (a) State (b) Backward Class of Citizens (c) Opinion (d) Not adequately represented.

(a) STATE– The word ‘State’ has the same meaning as defined in Article 12 of the Constitution. ‘State’ means, the Central Government, State Governments, Parliament, State Legislatures, and all local e.g. Panchayat, Port Trust etc.) or other authorities within the territory of India or under the control of the Government of India.

(b) BACKWARD CLASS OF CITIZEN– For the term ‘Backward Class of Citizens’, it was contended before the Supreme Court whether SCs and STs can be classified as backward classes in order to entitle them to the benefits of reservation under Article 16(4) of the Constitution. The Supreme Court had held that: ” Article 16 in the first instance by clause(2) prohibits discrimination on the ground, inter-alia, of religion, race, caste, place of birth, residence and permits an exception to be made in the matter of reservation in favour of backward classes of citizens. The expression ‘backward class’ is not used as synonymous with ‘backward caste’ or ‘backward community’. The members of an entire caste or community may be in the social, economic and educational scale of values at a given time be backward and may on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form a class. In its ordinary connotation the expression ‘class’ means a homogenous section of the people grouped together because of certain likenesses or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race religion and the like”. (Triloki Nath Vs. State of Jammu & Kashmir 1969) I SCR 103A 1960 SCI).

Thus, the SCs and STs would be deemed to be ‘backward class’ within the meaning of Article 16(4). In case of classification of backward classes, the Supreme Court in the case of Indra Sawhney has opined as follows: A caste can be and quite often is a social class in India. If it is backward socially, it would be backward class for the purpose of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which, for historical reasons, are socially backward. They too represent backward social collectives for the purpose of Article 16(4).

Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify the backward classes. It can adopt such method/ procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. One can start the process either with the occupational groups or with castes or with some other groups. Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does-what emerges is a “backward class of citizens” within the meaning of and for the purpose of Article 16(4). Similar process can be adopted in the case of other occupational group, communities and classes, so as to cover the entire populace. The central idea and overall objectives should be to consider all available groups, sections and group/ class encompassing and overwhelming majority of the country’s population, one can well begin with it and then go to other groups, sections and classes.

It is not necessary for a class to be designated as a backward class that it is situated similarly to the scheduled castes/scheduled tribes.

‘Creamy layer’ can be, and must be excluded.

It is not correct to say that the backward class of citizens contemplated in article 16 (4) is the same as the socially and educationally backward classes referred to in article 15(4). It is much wider. The accent in article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context”. (Indira Sawhney Vs UOI )

(c) OPINION-Another word occurring in Article 16(4) is ‘Opinion’. Thus, what is a matter of opinion cannot be mandatory nor is it subjected to any limitation of time.

(d) NOT ADEQUATELY REPRESENTED– Hon’ble Supreme Court has clarified the meaning of ‘not adequately represented’ as under: “ The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority.” Therefore, the ‘State’ has the first form an opinion about which castes/ community could be classified as the ‘backward class’ and whether the class so identified is adequately represented in the services under the state or not. After completion of this exercise, nothing shall prevent the State from making reservations.

According to the Supreme Court, Article 16(4) does not confer any right on the SCs and STs and there is no Constitutional duty imposed on the Government to make reservations for SCs/ STs, either at the initial stage of recruitment or at the stage of promotion. In other words, Art.16(4) confers a discretionary power on the State to make reservations of appointments in favour of backward class of citizens which in its opinion, are not adequately represented in the services of the State (Rajendran Vs UOI-1968 )

Reservation in Promotion

In the Indra Sawhney’ case, hon’ble Supreme Court also held that reservation in promotion is unconstitutional but permitted the reservation, for Scheduled Castes and Scheduled Tribes to continue for a period of five years(From 16.11.92). Consequent to this, the Constitution was amended by the Constitution (Seventy-seventh Amendment) Act, 1995 and Article 16(4-A) was incorporated. This Article enables the State to provide for reservation, in matters of promotion, in favour of the Scheduled Castes and Scheduled Tribes. The fact that the words “Backward class” used in Article 16(4) have been instituted in Article 16(4-A) by the words “SCs & STs”, itself precludes consideration of making reservation in promotion in favour of any other category of citizens.

Limitations of the Safeguard-Article 335

The Hon’ble Supreme Court has held in a number of cases, that Article 335 operates as a limitation to the provision contained in Article 16(4) though Article 16(4) does not specifically refer to Article 335 or raise any question of maintenance of efficiency of the administration. Thus, reservation for the backward class will be struck down as violative of Article 14 and 16(1), if it is unreasonably excessive.

While forming an opinion for making reservations the State shall also take cognisance of the limitation set out in Art.335 i.e. whether making reservation is consistent with the maintenance of efficiency of administration.

82nd Amendment Act, 2000, amended the Article 335. The background for the amendment was that the Hon’ble Supreme Court in the case of S.Vinod Kumar Vs. U.O.I had held that the various instructions of Government providing for lower qualifying marks/lesser standard of evaluation in matter of promotion for candidates belonging to SC/ST are not permissible in view of the provisions contained in Article 335. In view of this decision the various orders regarding lower qualifying marks/standard of evaluation for SC/ST in the matter of promotion were withdrawn by the Government w.e.f. 22.7.97. However, the Parliament decided to once again restore the relaxations and concession in promotion and the following proviso to Art.335 were added:-

“Provided that nothing in this Article shall prevent in making of any provisions in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in maters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State” In pursuance of this enabling proviso of Art.335, all relaxations/ concession which were withdrawn earlier w.e.f. 22.7.97 have now been restored.

Refer to various Supreme Court decisions related to reservations, click here