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Reservation in Public Employment: A critical analysis

RESERVATION IN PUBLIC EMPLOYMENT:

A CRITICAL ANALYSIS

Submitted By:
Rajat Gupta (11B110)
Arinjay Vyas (11A027)

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Reservation in Public Employment: A critical analysis

TABLE OF CONTENTS

1. INTRODUCTION3
2. AFFIRMATIVE ACTION IN THE LIGHT OF PREAMBLE5
3. JURISPRUDENTIAL EVOLUTION OF AFFIRMATIVE ACTION UNDER ARTICLE
16 CONSTITUTION OF INDIA7
4. EXTENT OF VALID RESERVATION..12
5. COMPRATIVE ANALYSIS OF ARTICLE 16 (4) WITH OTHER PROVISIONS OF
6.
7.
8.
9.

CONSTITUTION RELATED TO RESERVATION..14

RELEVANT FOREIGN JURISPRUDENCE..17
AFFIRMATIVE ACTION: A CRITIQUE..19
CONCLUSION.22
BIBLIOGRAPHY.24

INTRODUCTION
In Gopalan v. State of Punjab1 it was held that the Preamble to our Constitution is the
guiding star to the interpretation of the Constitution. Social justice is the word used in
the preamble by the Constitution framers. India is country where society is divided on
1

AIR 1950 SC 27

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Reservation in Public Employment: A critical analysis

the basis of caste. The Thakkar Bapa Commission has opined in his report that caste
cant be separated from the identity of an Indian 2. This segregation leads to social
inequality. The word EQUALITY of status and of opportunity is used to provide
everyone equal opportunity. The public life continues to be disproportionally dominated
by the upper castes. A rational and dispassionate analysis of this issue must begin with
the one crucial fact that is undisputed by either side, the overwhelming dominance of
upper caste in public employment. According to National Sample Survey Organisation
Only a little more than 1 per cent of Scheduled Tribes, Scheduled Castes, and Muslims
are graduates in rural India, while the figure for Hindu upper castes is four to five times
higher at over 5 per cent. The real inequalities are in urban India, where the SCs in
particular, but also Muslims, OBCs, and STs are way behind the forward communities
and castes with a quarter or more of their population being graduates. Another way of
looking at it is that STs, SCs, Muslims, and OBCs are always below the national
average while the other communities and especially Hindu upper castes are well above
this average in both rural and urban India 3. If we look to the National Sample Survey
Organisation, and analysis the data of share of all graduates as a percentage of group
share of 20+ population and consider below 100 underrepresentation and above 100
overrepresentation. In the case rural India ST is 43, SC 47, Upper Caste is 205. In the
case of urban population ST is 71, SC is 30 and Upper Caste is 164.

India is

democratic country. Democracy coined from the Greek word ( dmos) "people"
and (krtos) "power"4, which people should rule.
Therefore, the state uses reservation as affirmative action to bridge the gap between
privileged and deprived section of society. The issue of affirmative action shares strong
debates in relation to equality contemplated under the Constitution and the basic
structure doctrine. It may thus be pertinent to have an understanding of these concepts
prior to further analysis.

www.thehindu.com/2006/05/10/.../2006051011250400.htm visited on October 15, 2009

NSSO 55TH Round Survey 1999-2000
4
http://www.bbc.co.uk/history/ancient/greeks/greekdemocracy_01.shtml
3

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Reservation in Public Employment: A critical analysis

AFFIRMATIVE ACTION IN THE LIGHT OF PREAMBLE

The Preamble to the Constitution of India emphasizes the principle of equality as basic
to our Constitution. The Preamble to a Constitution embodies the fundamental values
and the philosophy, on which the Constitution is based, and the aims and objectives,
which the founding fathers of the Constitution enjoined the polity to strive to achieve. In
Kesavananda Bharati v. State of Kerala

it was ruled that even constitutional

amendments which offended the basic structure of the Constitution would be ultra vires
5

(1973) 4 SCC 225, para 506-A (Per Sikri J.), See also HM Seervai, Constitutional Law of India, Universal Law
Publishing zCo. Pvt. Ltd., 4th Edn. Rep. 2005, p. 651

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Reservation in Public Employment: A critical analysis

the basic structure. Stress was laid on the basic features enumerated in the Preamble
to the Constitution and said that there were other basic features too which could be
gathered from the constitutional scheme. Equality was one of the basic features referred
to in the Preamble to our Constitution. The social justice and equal opportunity
clause clearly aims at equality of status and opportunity for all citizens including those
who are socially, economically and educationally backward.
Political democracy cannot last unless there lies at the base of it social democracy 6.
Social justice is the recognition of greater good to a larger number without deprivation or
accrual of legal rights of anybody. If such things can be done, then social justice must
prevail over any technical rule. As between two parties, if a deal is made with one party
without serious detriment to the other, then the court would lean in favour of the weaker
section of the society.7 The constitutional concern of social justice as an elastic
continuous process is to accord justice to all sections of the society by providing
opportunities and facilities to inequality and to secure their dignity. 8 Social justice is the
comprehensive form to remove social imbalance by harmonizing the rival claims or
interest of different groups in the social structure or individuals by means of which alone
it would be possible to build a Welfare State. 9
According to the activist court, these words in the Preamble enjoin the State to enact
positive measures for the protection of the tribals and the weakers sections of the
society, so that constitutionality of such measures should be upheld in this light. 10
The expression social economic and political justice involves the concept of
distributive justice which connotes the removal of economic inequalities and rectifying
the the injustice resulting from dealings or transactions between unequals in society.
The ideal of economic justice is to make equality of status meaningful and life
worthliving at its best removing inequality of opportunity and of status- social economic

Speech delivered by Dr. Ambedkar in the Constituent Assembly

Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471
8
Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42
9
Air India Statutory Corporation v. United LAbour Union, (1997) 9 SCC 377
10
Indira Sawney v. Union of India, AIR 1993 SC 477
7

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Reservation in Public Employment: A critical analysis

and political. In the case of Ashok Kumar v. State of U.P.11 it was held by the SC that
social justice is a fundamental right.

JURISPRUDENTIAL EVOLUTION OF AFFIRMATIVE ACTION

UNDER ARTICLE 16 CONSTITUTION OF INDIA

11

(1997) 5 SCC 201

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Reservation in Public Employment: A critical analysis

Article 16(4)12 of the Constitution of India is an enabling provision and confers a

discretionary power on the state to make a reservation of appointments in favour of the
backward classes of citizen which in its opinion, is not adequately represented either
numerically or qualitatively in services of the state. 13 It is an important provision which
empowers the State permitting the provision for the reservation of appointments and
posts in favour of any backward class of citizens which in the opinion of the State is not
adequately represented in the services of the State. The court might uphold the
relaxation of the efficiency requirement for promotion where there is provision for the
training and coaching of the backward class promotes, to bring them up to the
standards of other.14 The stress is on backwardness of the citizens and inadequate
representation in the services under the State.
As per the Indra Sawhney 15ruling in the by the Honourable Apex Court, provisions can
be made for the upliftment of socially and educationally backward classes, Scheduled
Castes or Scheduled Tribes or for women and children. Article 16(4) empowers the
States for making any provision for reservation in 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. Reservation is permissible
i.
ii.

In favour of any backward class of citizens; and

If it is not adequately represented in services under the State.

Caste only cannot be the basis for reservation. Reservation can be for a backward class
citizen of a particular caste. Therefore, from that caste, the creamy layer and the non12

(4) 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.
[(4A) Nothing in this article shall prevent the State from making any provision for reservation 3[in matters
of promotion, 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 which, in the opinion of the State, are not adequately represented
in the services under the State.]
4[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which
are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4)
or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of
vacancies shall not be considered together with the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.]
13
Supra Note at 10
14
A.B.S.K. v. U.O.I, (1981) 1 SCC 246
15
AIR 1997 SC 597, See also HM Seervai, Constitutional Law of India, Universal Law Publishing Co., Delhi, 4 th
Edn. Rep. 2005 p. 899

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Reservation in Public Employment: A critical analysis

backward class of citizens are to be excluded. If the caste is to be taken into

consideration then for finding out the socially and economically backward class, the
creamy layer of the caste is to be eliminated for granting benefit of reservation, because
that creamy layer cannot be termed as socially and economically backward. Inclusion of
castes in the list of backward classes cannot be mechanical and cannot be done without
adequate relevant data. Nor can it be done for extraneous reasons. 16
Likewise, periodic examination of a backward class could lead to its exclusion if it
ceases to be socially backward or if it is adequately represented in the services. Once
backward, always backward is not acceptable. In any case, the "creamy layer" has no
place in the reservation system. If forward classes are mechanically included in the list
of backward classes or if the creamy layer among backward classes are not excluded,
then the benefits of reservation will not reach the really backward among the backward
classes. Most of the benefits will then be knocked away by the forward castes and the
creamy layer. That will leave the truly backward, backward forever.17
Parliament and the legislature in this country cannot transgress the basic feature of the
Constitution, namely, the principle of equality enshrined in Article 14 of which Article
16(4) is a facet. Whether the creamy layer is not excluded or whether forward castes
get included in the list of backward classes, the position will be the same, namely, that
there will be a breach not only of Article 14 but of the basic structure of the Constitution.
The non-exclusion of the creamy layer or the inclusion of forward castes in the list of
backward classes will, therefore, be totally illegal. Such an illegality offending the root of
the Constitution of India cannot be allowed to be perpetuated even by constitutional
amendment.
Our Constitution aims at equality of status and opportunity for all citizens including those
who are socially, economically and educationally backward. The claims of members of
backward classes require adequate representation in legislative and executive bodies.
Preferential treatment for members of backward classes with due regard to
administrative efficiency alone can mean equality of opportunity for all citizens. Equality
16

Ashoka Kumar Thakur v. State of Bihar, AIR 1996 SC 75 , Indra Sawhney v. Union of India (II) , AIR1997 SC
597 , M. Nagaraj v. Union of India, AIR 2007 SC 71
17
Ibid

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Reservation in Public Employment: A critical analysis

under Article 16 could not have a different content from equality under Article 14.
Equality of opportunity for unequals can only mean aggravation of inequality. Equality of
opportunity admits discrimination with reason and prohibits discrimination without
reason. Discrimination with reasons means rational classification for differential
treatment having nexus to the constitutionally permissible object.

18

As noted in M. Nagaraj v. Union of India 19, equality in law is different from equality in
fact. When we construe Article 16(4), it is equality in fact which plays the dominant role.
Backward Classes seek justice. General class in public employment seeks equity. The
difficulty comes in when the third variable comes in, namely, efficiency in service. In the
issue of reservation, we are being asked to find a stable equilibrium between justice to
the backwards, equity for the forwards and efficiency for the entire system. Equity and
justice in the above context are hard concepts. 20 However, if you add efficiency to equity
and justice, the problem arises in the context of the reservation. This problem has to be
examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be
construed in the light of Article 335 of the Constitution. Inadequacy in representation
and backwardness of the Scheduled Castes and Scheduled Tribes are circumstances
which enable the State Government to act under Article 16(4) of the Constitution.
In the matter of application of the principle of basic structure, twin tests have to be
satisfied, namely, the "width test" and the test of "identity". The concept of the
"catch-up" rule and "consequential seniority" are not constitutional requirements. They
are not implicit in Clauses (1) and (4) of Article 16. They are not constitutional
limitations. They are concepts derived from service jurisprudence. Obliteration of these
concepts or insertion of these concepts does not change the equality code indicated by
Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the
State from taking cognizance of the compelling interests of Backward Classes in the
society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality
under Article 14. Clause (4) of Article 16 refers to affirmative action by way of
18

Gupta R.K. Justice Unequal but Inseparate, 11, Journal of Indian Law Institute, 57 (1969).
Ghouse, M, Judicial Control of Protective Discrimination, 11, Journal of Indian law Institute, (1969)
20
Singh M.P. Social Justice for Harijans, Some Socio-legal Problems of Identification, conversion and Judicial
Review., Journal of Indian Law Institute, 355 (1978).
19

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reservation. Clause (4) of Article 16, however, states that the appropriate Government
is free to provide for reservation in cases where it is satisfied on the basis of quantifiable
data that Backward Class is inadequately represented in the services. 21
The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4-B)
is that the State is empowered to identify and recognize the compelling interests. If the
State has quantifiable data to show backwardness and inadequacy then the State can
make reservations in promotions keeping in mind maintenance of efficiency which is
held to be a constitutional limitation on the discretion of the State in making reservation
as indicated by Article 335. As stated above, the concepts of efficiency, backwardness,
inadequacy of representation are required to be identified and measured. That exercise
depends on availability of data. That exercise depends on numerous factors. It is for this
reason that enabling provisions are required to be made because each competing claim
seeks to achieve certain goals. How best one should optimise these conflicting claims
can only be done by the administration in the context of local prevailing conditions in
public employment. Therefore, there is a basic difference between "equality in law" and
"equality in fact". 22
A detailed discussion in this regard may be found in the case of Ashoke Kumar Thakur
v. Union of India,23 where the Constitution Bench of the Supreme Court has explained
the import of Section 16 at length. It has been stated that clause (4) of Article 16 is not
an exception to Clause (1). It is an instance and an illustration of the classification
inherent in Clause (1). 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. 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.

21

Galanter, Marc, Prospective Discrimination for Backwad classes in India, 3 Journal of Indian Law Institute, 39
(1961).
22
Andre Betielle, Distributive Justice and Institutional Well Being, Economic and Political Weekly, Annual Number,
1991.
23
(2008) 6 SCC 1

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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 occupational groups or with castes or with some other
groups. Thus one can start the process with castes, wherever they are found, apply the
criteria and find out whether it satisfy the criteria. If it does what emerges is a
"backward class of citizens" within the meaning of and for the purposes of Article
16(4). Similar process can be adopted in the case of other occupational groups,
communities and classes so as to cover the entire populace. The central idea and
overall objective should be to consider all available groups, sections and classes in
society. Creamy layer, though as per the Indra Sawhney judgement stood excluded
from the purview of OBCs.24

EXTENT OF VALID RESERVATION

50 percent rule: Reservation

24

Ibid, See also Agrawal, S.K, Protective Discriminatin for Backward Classes, in India, M.Imam, (Ed) Minorities
and the Law, New Delhi, Indian Law Institute, (1972)

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Reservation in Public Employment: A critical analysis

In India, the extent of reservation to be made is primarily a matter for the State of
decide, subject, of course, to judicial to judicial review on the ground that the reservation
is so excessive that it renders the guarantee of equality in Article 16 (1) 25 or Article 33526
meaningless. Thus, the reservation of more than 50 percent of the vacancies as they
arise in any year. Or a carry forward rule which has the same effect will be outside the
protection of Article 16 (4).
The nominal rule is that the reservation under 16 (4) should not exceed 50 percent of
the appointments or posts to be made in a particular year. 27 Extraordinary situations
may, however, call for exception, e.g., additional reservation may be required for the
people inhabiting remote areas, out of the mainstream of national life. 28
Single Post: Reservation
It has been ruled by the Supreme Court in the case of Chakradhar Paswan v. State of
Bihar that where there is only one post in the cadre, there can be no reservation for the
backward classes (SC, ST,OBC) with reference to that post either for recruitment at the
initial stage or filing up a future vacancy in respect of that post. No reservation could be
made under Article 16 (4) so as to create a monopoly. Otherwise, the guarantee of
equal opportunity contained in Article 16 (1) and 16 (2) 29 would be rendered wholly
meaningless and illusory. Subsequently, it was held that provision for reservation is
promotion to such a post by rotating the vacancies as per the roster point would not be
violative of Article 16 (1). In the absence of any such rule, each year has to be treated
as the unit for applying the rule of reservation or concession, as the case may be. Also
25

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any
office under the State.
26
The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration,
consistently with the maintenance of efficiency of administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of a State:
Provided that nothing in this article shall prevent in making of any provision in favour of the members of the
Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the
standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in
connection with the affairs of the Union or of a State.
27
Indira Sawney v. U.O.I, AIR 1993 SC 477, A.B.S.K.S v. U.O.I, (1981) 1 SCC 246, State Bank of India SC/ST
Employees Welfare Association v. State Bank of India, (1996) 4 SCC 119, G.R. Chavan v. State of Maharastra,
(1998) 9 SCC 48
28
Supra note at 10
29
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

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Reservation in Public Employment: A critical analysis

the concession cannot be given retrospectively.30 The rule of 50 percent a year should
be taken as as the unit not the entire strength of the cadre or the service as the case
may be.31
If the suitable candidates are not available in a particular year to fill the reserved seats,
the reserved quota should not be carried forward to the next year, so as to exceed the
50 per cent limit for reservation. 32 The reserved vacancies should not be carried forward
beyond the period of three years at the end of which they lapse and cannot be revived
ad filled and filled retrospectively by the applying the relaxed norms but within three
years, the reserved candidate became eligible for promotion, the ad hoc promotee of
the general category was held to be not entitled for regularized. 33 It is an extention of
providing facility and opportunity to secure adequacy of the representation to SCs and
STs mandated by Article 335.34
The limit of 50 percent is applicable only to reservation and cannot be applied to
exemptiom, concessions or relaxations, if any, provided to backward classes, under
Article 16 (4).35
After inserting clause (4-B) to Art. 16, now unfilled vacancies treated as a separate
class. Thus controversy relating to unfilled vacancies has been set at rest.

COMPRATIVE ANALYSIS OF ARTICLE 16 (4) WITH OTHER

PROVISIONS OF CONSTITUTION RELATED TO
RESERVATION
Article 16 (4) and 46:
30

National Federation of S.B.I v. U.O.I, AIR 1993 SC 477

Swati Gupta v. State of U.P.
32
Supra Note at 10
33
S. Rajendra v. U.O.I, (1998) 3 SCC 620
34
The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration,
consistently with the maintenance of efficiency of administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of a State:
Provided that nothing in this article shall prevent in making of any provision in favour of the members of the
Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the
standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts
inconnection with the affairs of the Union or of a State., State of Punjab v. G.S. Gill (1997) 6 SCC 620
35
Indira Sawney v. U.O.I, AIR 1993 SC 477
31

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While clause 1 of article 16 of the constitution of India embodies a concept of state

equality, Cl.4 of Article 16, read with Article 46, imports a dynamic concept which enjoins
the state to extirpate the exploitation of the Schedule Castes and Schedule Tribes as
speedily as possible,36 without undermining efficiency of the administration. 37
Arts. 16 (4) and 335.- while Cl. (4) is apparently without any limitation upon the power
of reservation conferred by it, it has to be read together with Article 335 which enjoins
that in taking into consideration the claims of the members of the Scheduled Castes and
Scheduled Tribes in the making of appointments in connection with the Union or a
State, the policy of State should be consistent with maintenance of efficiency of
administration. For fructifying the scheme under Article 16(1) and Article 16 (4), Article
335 has to be kept in view and is to be given full play.38
Arts. 14 and 16:
Article 16 is only an incident of the general concept of equality enshrined in Article 14, in
the manner of appointment and promotion. 39 It follows, therefore, that a reasonable
classification of employees is permissible under Article 16, and that the equality
guaranteed by Article 16 (1) is only an equality between members of the same class of
employees.
Article 16 thus permits a classification betweeni. Direct recruits and promotees,40 and special recruits;41
ii. Higher and inferior classes or grades in the same service, calling for
different degrees of efficiency and responsibility; 42
iii. Employees of the Railway and employees of the Central Secretariat.
Such classification would, however, be constitutionalIf no guideline is offered by the relevant provision which leaves to the Government or an
executive officer the power to select any suitable person to a higher cadre, thus giving
them an arbitrary power of patronage.43

36

Indira Sawney v. U.O.I,

Id.
38
State of Bihar v. Bal Mukund Shah (2000) 6 SCC 640 (para 38)
39
Rajendran C.A. v. Union of India AIR 1968 SC 507
40
Mervyn Coutinda v. Collector of Customs, Bombay, AIR 1967 SC 52
41
Saksena Anand Prakash v. Union of India AIR 1968 SC 754
42
Rajendran C.A. v. Union of India, supra note 4
43
State of Mysore v. Jayaram S.R. AIR 1968 SC 346
37

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Reservation in Public Employment: A critical analysis

The provisions in Arts. 14 and 16 are supplementary to each other and have, therefore,
to be read together.44 Hence, reservation of appointments for members of backward
classes cannot be said to be violative of Article 14, because that is provided in Article 16
(4). But the two provisions must be read together. If, therefore, the reservation is so
excessive as practically to deny a reasonable opportunity of employment to members of
other communities, it would be a contravention of Article 14. 45 The right to seek
appointment to a post under Article 14 r/w article 16(1) and (4) is a constitutional right to
equality. Thus, where the SC candidates selected in reserve posts did not join, denial of
appointment to an equal number of SC candidates who, though not selected, had
obtained marks equal to that obtained by the last SC candidates selected or had stood
immediately below him, is equal to that obtained by the last SC candidates selected or
had stood immediately below him is unconstitutional. 46 Arts. 16 (4A) and (1) and 14 read
together guarantee a right to promotion to SCs and STs as a fundamental right where
they do not have an adequate representation consistently with the efficiency in the
administration.47 Where the employees, continuing in service even after completion of
58 years but not having attained the age of 60 and withdrawn their CPF were given
pension benefit, those having retired at the age of 60 and having withdrawn their CPF
were also held entitled to the benefit of the pension if they deposited the withdrawal
CPF in the governmental account.48
Where promotion from the post of assistant engineer was restricted to degree-holders,
prescribing specific quota i.e. (50:50) for promotion to the post of assistant engineer
from lower post each for degree holders with three years experience and for diploma
holders with seven years experience is not arbitrary as it ensures the availability
sufficient number of degree holders in the feeding channel. 49 Where the memorandum
of cut-off date after which the apprentices were granted higher pay scale and reduced

44

Devdasan T. v. Union of India AIR 1964 SC 179

Ibid.
46
Jai Narayan Ram v. State of U.P, (1996) 1 SCC 332
47
Ashok Kumar Gupta v.State of U.P. (1997) 5 SCC 201
48
R. Subramaniam v. Chief Personal Officer, Central Railways, Ministry of Railways,(1996) 10 SCC 72
49
Nageshwar Prasad v. Union of India 1995 Supp (4) SCC 718
45

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Reservation in Public Employment: A critical analysis

training period had come to be issued following many deliberations and discussions with
different unions, the same cannot be said to be arbitrary.50

RELEVANT FOREIGN JURISPRUDENCE

Caste system is a peculiar feature of our country. This social problem can be compared
to some extent with that of American society. In the U.S., the problem of racial
discrimination has existed for centuries. The cases of affirmative action decided in the
United States are relevant. They show how the society has dealt with the problem of
racial discrimination. The judgments delivered by U.S. courts on affirmative action have
great persuasive value and they may provide broad guidelines as to how we should
tackle our prevailing condition.

50

Union of India v. Sudhir Kumar Jaiswal (1994) 4 SCC 612, Union of India v. M. Bhaskar (1996) 4 SCC 416 (para
11).

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Reservation in Public Employment: A critical analysis

In 1978, Regents of the University of California v. Bakke, Justice Powell concluded that
diversity was a compelling State interest that could withstand strict scrutiny. Relying on
Bakke, the court later reaffirmed preferential treatment in college admissions as a
means to ensure diversity in the classroom - racial diversity being just one among many
types of diversity.51
The Grutter Case insisted that universities make an individualized evaluation of a
student seeking admission, rather than one that mechanically accepted or rejected
students on the basis of race. Such an evaluation would ensure that race was only
considered as one type of diversity, rather than a pretext for achieving racial balance.
Quotas could not be covertly installed in the name of diversity. This reasoning led the
court to strike down an admission scheme that automatically assigned more points to
minority students than to residents of the State or to athletes, for example. 52
In Parents Involved in Community Schools v. Seattle School District No. 1 et al 53 school
districts used a student's race to assign that student to a particular school within the
district. In Seattle, this was done to achieve racial balance amongst the district's
schools. One school should not be overwhelmingly white, another all non-white. Unlike
the system approved in Grutter, race was not just one among many types of diversity
that was considered by the district in assigning students. Instead, it was, at times, the
decisive factor. The court held the programmes unconstitutional. Chief Justice Roberts
summed up the plurality's view on racial classifications:
"The way to stop discrimination on the basis of race is to stop discriminating on
the basis of race."
Of the classifications on which there is case law, the one that most closely resembles
caste is race. This is because both are immutable traits. They are used by the powerful,
or those seeking power, to justify oppression. Racism and casteism have long haunted
both Nations. In the United States, race raises red flags. It is often, though not always,
reviewed under strict scrutiny: "Government action dividing people by race is
51

See: Grutter v. Bollinger 539 U.S. 306, 338 (2003)

Gratz v. Bollinger 539 U.S. 244, 270
53
168 Lawyers Ed. 2d 508 & 517 (2007), See also Ely H. The Constitutionality of Reverse Racial Discrimination,
41, Chicago, Law Review, (1974)
52

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Reservation in Public Employment: A critical analysis

inherently suspect because such classifications promote 'notions of racial inferiority

and lead to a politics of racial hostility,' 54 and "racial classifications are simply too
pernicious to permit any but the most exact connection between the justification and the
classification."55
Legislation whose text does not classify based on race is considered facially neutral.
When facially neutral legislation has a disproportionate impact on a particular race,
American courts ask whether it was passed with an intention to discriminate. If no
intention is found, the rational basis test applies.

56

AFFIRMATIVE ACTION: A CRITIQUE

Caste has divided this country for ages. It has hampered its growth. To have a casteless
society will be realization of a noble dream. To start with, the effect of reservation may
appear to perpetuate caste. The immediate effect of caste based reservation has been
rather unfortunate. There has been a tendency even among those who are considered
as 'forward', to seek 'backward' tag, in the hope of enjoying the benefits of reservations.
When more and more people aspire for 'backwardness' instead of 'forwardness' the
country itself stagnates. Be that as it may. Reservation as an affirmative action is
required only for a limited period to bring forward the socially and educationally
backward classes by giving them a gentle supportive push. But if there is no review

54

Croson at 102 L. Ed. 2d 854

Gratz v. Bollinger 539 U.S. 244, 270 (quoting J. Stevens' dissent in Fullilove v. Klutznick 448 U.S. 448, 537
56
See: Hernandez v. New York 500 U.S. 352 (1991) (quoting from Arlington Heights v. Metropolitan Housing
Development Corporation 429 U.S. 252, 264-265 (1977), A court addressing this issue must keep in mind the
fundamental principle that "official action will not be held unconstitutional solely because it results in a racially
disproportionate impact. Proof of racially discriminatory intent or purpose is required to show a violation of the
Equal Protection Clause See also Washington v. Davis 426 U.S. 229, 239 (1976).
55

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Reservation in Public Employment: A critical analysis

after a reasonable period and if reservation is continued, the country will become a
caste divided society permanently.57
Provisions of the Constitution have to be read harmoniously and no part can be treated
to be redundant. A construction which reduces the statute to a futility has to be avoided.
A statute or any enacting provision therein must be so construed as to make it effective
and operative on the principle expressed in the maxim ut res magis valeat quam
pereat i.e. a liberal construction should be put upon written instruments, so as to uphold
them, if possible, and carry into effect the intention of the parties. 58 A statute is designed
to be workable and the interpretation thereof by a court should be to secure that object
unless crucial omission or clear direction makes that end unattainable. 59
The courts will have to reject that construction which will defeat the plain intention of the
legislature even though there may be some inexactitude in the language used. 60
If the choice is between two interpretations, the narrower of which would fail to achieve
the manifest purpose of the legislation, we should avoid a construction which would
reduce the legislation to futility, and should rather accept the bolder construction, based
on the view that Parliament would legislate only for the purpose of bringing about an
effective result.61
The statute must be read as a whole and one provision of the Act should be construed
with reference to other provisions in the same Act so as to make a consistent enactment
of the whole statute. The court must ascertain the intention of the legislature by directing
its attention not merely to the clauses to be construed but to the entire statute; it must
57

Pulin B Nayak, On Equality and Distributive Justice, Economic and Political Weekly, Bombay, Annual Number,
1991.
58
Galanter Marc, Who are the other Backward Classes ? An Introduction to a constitutional puzzle, Economic and
Political Weekly, Bombay, Oct 1978
59
See Whitney v. IRC 1926 AC 37 at p. 52 referred to in CIT v. S. Teja Singh [1959]35ITR408(SC) and Gursahai
Saigal v. CIT, 1963]1ITR48(SC), See also Brast P. , In Defense of Anti-Discrimination principles, 90 Harvard law
Review, 1 (1976).
60
See Salmon v. Duncombe (1886) 11AC 627 at p.634, Curtis v. Stovin (1889) 22 QBD 513) referred to in S. Teja
Singh case . See also S.G.G Edgar, Craies on Statute Law, Universal Law Publishing Co. Pvt. Ltd, Delhi, 7 th Edn.,
Second Indian Reprint, 2002, p. 507
61
Nokes v. Doncaster Amalgamated Collieries 1940 (3) All ER 549 referred to in Pye v. Minister for Lands for NSW
(1954) 3 All ER 514. The principles indicated in the said cases were reiterated by this Court in Mohan Kumar
Singhania v. Union of India, AIR1992SC1, See also Bickel, The Original Understanding of the segregation
decisions 69, Harvard Law Review, 1 (1955).

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Reservation in Public Employment: A critical analysis

compare the clause with other parts of the law and the setting in which the clause to be
interpreted occurs.62
Such a construction has the merit of avoiding any inconsistency or repugnancy either
within a section or between two different sections or provisions of the same statute. It is
the duty of the court to avoid a head- on clash between two sections of the same Act.
Whenever it is possible to do so, it must be done to construe the provisions which
appear to conflict so that they harmonize. It should not be lightly assumed that
Parliament had given with one hand what it took away with the other. The provisions of
one section of the statute cannot be used to defeat those of another unless it is
impossible to effect reconciliation between them. Thus a construction that reduces one
of the provisions to a "useless lumber" or "dead letter" is not a harmonized
construction. To harmonize is not to destroy.63
Despite the implementation of reservation policies in India, the most disadvantaged
groups continue to live in extreme poverty without job opportunity or possibility for
economic advancement. Untouchables continue to be restricted to menial forms of labor
- leather workers, street sweepers, scavengers, cobblers, and removers of human
waste. A majority of untouchables continue to work in the agricultural industry, often
receiving only a few kilograms of rice a day as payment. 64 Dalits have the highest rates
of child laborers and female prostitution. They are paid significantly under the minimum
wage and often they are not paid at all and instead receive payments in kind. 65
Reservation policies fail to address the social and cultural circumstances that have
lead to the economic condition of the untouchables and other backward classes.
Economic exclusion is deeply rooted in Indian society, however, little is done to study

62

See R.S. Raghunath v. State of Karnataka, AIR1992 SC 81, See also P. St. J. Langan, Maxwell on Interpretation
of Statutes, Lexis Nexis Butterworths, New Delhi, 12th Edn., 2003, p. 47
63
See Justice G.P. Singh, Principles of Statutory Interpretation, Lexis Nexis Butterworth Wadhwa Nagpur, New
Delhi, 2008 Edn., p. 140
64
Parikh, Sunita. The Politics of Preference: Democratic Institutions and Affirmative Action in the United States
and India. Michigan: University of Michigan. 1997. p. 3
65
Seenarine, Moses. Dalit Women: Victims or Beneficiaries of Affirmative Action Policies in India A Case Study .
Paper presented at a Brown Bag Lecture held by the Southern Asian Institute, Columbia University, 1996.
http://www.saxakali.com/Saxakali-Publications/dalit1.htm

P a g e | 21
Reservation in Public Employment: A critical analysis

the continued unequal access to resources inflicted upon the backward classes despite
reservation policies. These policies, although slightly beneficial, remain stagnant. 66

CONCLUSION
Reservation is necessary for the administering social justice and give equal opportunity
to every member of society including privileged and deprived section of society. In light
of the above observations, the approach adopted by the Honourable Apex Court
recently in the post Indra Sawhney era becomes laudable so as to give effect to the
intention of the founding fathers of our Constitution which has been effectively
construed using various extrinsic aids to construction such as Parliamentary Debates,
Speeches and various Committee Reports becomes laudable. The challenges offered
by the social context could not be ignored for the sake of formal equality under Article
14. The theory of equality promotes equality among equals not among unequals.
Equality among unequals is itself contrary to Art. 14. The same however cannot be

66

Justice Mathews in his address to the Evening Faculty of Law, University of Delhi, on 25th Jan 1975. This was a
Symposium on the Consitution of India, entitled Fundamental Rights and Distributive Justice.

P a g e | 22
Reservation in Public Employment: A critical analysis

compromised to the detriment of the deserving and a handful section of people reaping
undue benefits from this scheme referred to as the creamy layer.
The judiciary, in the humble opinion of the researcher, has thus performed the delicate
balancing act with utmost precision ensuring that the executive ensures proper
identification of backward classes who fulfill the constitutional criteria and the impugned
benefits trickle down to the grass roots. By harmoniously, construing Article 16 (1) and
Article 16 (4) and by bringing the exploited castes under the umbrella of class where
the two conditions mentioned therein are fulfilled, a sensible approach has been shown
in a contextual setting where caste and class is inextricably intertwined.
A parallel in this regard has been drawn from the criteria of suspect legislation and
scrutiny in American Jurisprudence which provides for an effective check and balance
mechanism for ensuring the workability of affirmative action aimed at improving the
social and economic standing of the racially abused sections of the society. The
innovation is indeed praise worthy given the fact that affirmative action in Indian legal
parlance has a much older origin as compared to its American counterpart. It must
however be remembered that vesting of discretion and exercise of discretion are two
completely different things and it now remains up to the executive to make justified use
of this discretion to identify the appropriate sections of the community and extend the
benefits accordingly rather than using the same as a potent tool of vote-bank politics.
The judicial contribution in such a case would become a redundant exercise.

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Reservation in Public Employment: A critical analysis

BIBLIOGRAPHY
Books referred
1. HM Seervai, Constitutional Law of India, Universal Law Publishing Co., Delhi, 4th Edn.
Rep. 2005
2. P. St. J. Langan, Maxwell on Interpretation of Statutes, Lexis Nexis Butterworths, New
Delhi, 12th Edn., 2003
3. Justice G.P. Singh, Principles of Statutory Interpretation, Lexis Nexis Butterworth
Wadhwa Nagpur, New Delhi, 2008 Edn.
4. Samaraditya Pal, Service Law Relating to Government & Public Undertakings, Wadhwa
& Co., Nagpur, 2nd Edn.,2004

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Reservation in Public Employment: A critical analysis

Articles referred
1.

Blackshield A.R., Fundamental Rights and Institutional viability of the Indian Supreme
Court, 8, Journal of the Indian Law Institute, 210 (1966)

2. Gupta R.K. Justice Unequal but Inseparate, 11, Journal of Indian Law Institute, 57
(1969)
3. Ghouse, M, Judicial Control of Protective Discrimination, 11, Journal of Indian law
Institute, (1969)
4. Singh M.P. Social Justice for Harijans, Some Socio-legal Problems of Identification,
conversion and Judicial Review., Journal of Indian Law Institute, 355 (1978).
5. Galanter, Marc, Prospective Discrimination for Backwad classes in India, 3 Journal of
Indian Law Institute, 39 (1961).
6. Andre Betielle, Distributive Justice and Institutional Well Being, Economic and Political
Weekly, Annual Number, 1991
7. Agrawal, S.K, Protective Discriminatin for Backward Classes, in India, M. Imam, (Ed)
Minorities and the Law, New Delhi, Indian Law Institute, (1972)
8. Ely H. The Constitutionality of Reverse Racial Discrimination, 41, Chicago, Law
Review, (1974)
9. Pulin B Nayak, On Equality and Distributive Justice, Economic and Political Weekly,
Bombay, Annual Number, 1991
10. Galanter Marc, Who are the other Backward Classes ? An Introduction to a
constitutional puzzle, Economic and Political Weekly, Bombay, Oct 1978
11. Bickel, The Original Understanding of the segregation decisions 69, Harvard Law
Review, 1 (1955).
12. Parikh, Sunita. The Politics of Preference: Democratic Institutions and Affirmative
Action in the United States and India. Michigan: University of Michigan. 1997. p. 3