Indian Journal of Law and Legal Research Volume IV Issue I | ISSN: 2582-8878

LAW OF RESERVATION: HOW LEGISLATURE AND

JUDICIARY FOUGHT THE BATTLE OVER THE YEARS

Kartikey Bajpai, LL.M., University Of Lucknow, Lucknow

ABSTRACT

India as a country is divided in language, belief, religion, caste, sub caste and
so on depending upon how deep you want to investigate. Some were
classified as upper and some were classified as lower caste. There are
historical records of unequal and unfair treatment of people of lower caste
due to perpetual indoctrination of this hierarchy. When the country got
independence and became capable of making its own laws, the Constitution
came into force in 26 Jan. 1950. The framers of the Constitution of India
inserted provisions giving directives to the state to make special laws for
Promotion of educational and economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sections under Art. 46 of Part IV of the
Constitution of India. The same Constitution also gave the people of India
guaranteed fundamental rights under Part III, one of which is Right to
Equality which were enforceable against state if state attempt to violate those
through any law defined under Art. 13(3) of the Constitution. Due to these
provisions the Legislature which was now empowered to make special laws
treating its people unequally started to come in direct confrontation with the
judiciary which was the guardian of fundamental rights of the people. And
the Battle Began.

This paper aims at tracing important milestones where these two branches of
the govt. went head to head over the years over the matter of law of
reservation and in doing so tracing the important checkpoints on the law.

Keywords: Reservation, Fundamental Rights, Directive Principles of State

policy

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IMPORTANT PROVISIONS OF CONSTITUTION IN THIS REGARD:

1. Fundamental rights: Contained in Part III Article 12 to 35. These are guaranteed rights
and enforceable against the State in the Constitutional courts. In the context of
reservation the relevant fundamental rights which the gets affected is Right to Equality
which is provided from Article 14 to Article 18 of the Constitution. Art. 29(2) which
states that:

‘No citizen shall be denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, race, caste, language
or any of them’

The main principle of equality is contained in Art. 14 which says:

‘The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India’

The fundamental rights guaranteeing equality in places of public is Art. 15 that says:

‘The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them’

2. Directive principles of State policy: Contained in Part IV Article 36 to 51. These are
not guaranteed rights but like a future vision for the govt. directed by the Constitution
which they can execute if they have the necessary resources available. In the context of
reservation the relevant DPSP is contained in Art. 46 that says:

‘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’

HOW THE BATTLE BEGAN AND PROCEEDED:

1. State of Madras v. Champakam Dorairajan1:

This was the first major case in the independent India that lead to the first amendment to the
Indian Constitution. The Constitution came into force in 1950 and this case happened in 1951.

1
AIR 1951 SC 226

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Prior to independence a law named as Govt. Order 1927 (Madras Presidency) was in force
which provided caste based reservation in govt. jobs and college seats. Soon after, India had
its own Constitution providing guaranteed fundamental rights like Article 14, 15 and 29(2), a
challenge was imminent.

Person named Champakam Dorairajan was denied admission in MBBS on the vacant seats on
the ground that the seats are classified as reserved by University of Madras as per G.O. 1927.
She contested it on the ground of being violative of her fundamental rights such as Article 15
and 29(2).

Govt. defended the law on the ground of Article 46 in the DPSP which allowed for special laws
for promotion of SCs, STs, and other weaker sections of the society.

The Hon’ble Court held that whenever two legal provisions, one being a Fundamental right
and the other being a DPSP come in conflict, the Fundamental rights shall prevail. And thus
gave a major blow to the legislature’s intent to provide reservation.

2. First Constitutional Amendment Act, 1951: Because of Champakam Dorairajan’s

ruling it became impossible for the govt. to provide reservation in the existing
Constitution. So they amended the Constitution itself. And thus came the Ist
Constitutional amendment, 1951 inserting a new Article 15(4) that said:

‘Nothing in this article shall prevent the State from making any provision for the reservation
of appointments or posts in favor of any backward class of citizens which, in the opinion of
the State, is not adequately represented in the services under the State’

Now the govt. did not have to rely upon a provision from DPSP alone i.e. Art. 46, to put up a
fight against the Fundamental rights. Instead they implanted their warrior i.e. Art. 15(4), right
among the provisions of Part III guaranteeing Fundamental rights and thus enabled a way to
provide reservation.

3. Indra Sawhney & Others v. Union of India2: Prior to this Judgment in 1992, In 1962
the Constitution Bench of the Hon’ble Apex Court3 by a marginal majority of 3:2
upheld the constitutionality of reservation in promotion by emphasizing on the

2
1992 Supp 2 SCR 454
3
The General Manager, Southern Railway v. Rangachari , AIR 1962 36

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expressions “matters relating to employment” in Article 16(1) and “in respect of any
employment” used in Article 16(2) of the Constitution. And then again in 1981, the
Apex Court4 held that which said that reservations could be made in promotions as well
as appointments.

In 1992, Indira Sawhney judgment however, a 9 Judge Constitutional bench of the Apex Court
overruled these two earlier judgments of 1962 and 1981 respectively and held that:

‘Art. 16(4) do not allow reservation in matters of promotion. It only extends to reservation
in appointments’- (Later Nullified by legislature via 77th Constitutional amendment, 1995).

‘Maximum limit of 50% can’t be crossed in total’- (Later bypassed by legislature via 81st
Constitutional amendment, 2000).

4. 77th Constitutional Amendment Act, 1995: After India Sawhney’s ruling in 1992, the
legislature could not extend reservation in matters of promotion in govt. jobs. They
therefore amended the Constitution and added Art. 16 (4A) which says that:

‘Nothing in this article shall prevent the State from making any provision for reservation in
matters of promotion to any class or classes of posts in the services under the State in favor
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’

Through the insertion of this provision, the legislature overruled Indira Sawhney to the extent
up to which it prevented reservation in matters of promotion in govt. jobs.

5. 81st Constitutional Amendment Act, 2000: 50% Cap on reservation in total, as

imposed by the Apex court in Indira Sawhney’s ruling was bypassed through the
insertion of Art. 16(4B) which incorporated the ‘carry forward rule’ which says that:

‘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

4
1981 AIR 298

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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’

Therefore through the insertion of 77th and 81st C.A.A. in the year 1995 and 2000 respectively,
the legislature diluted the Apex Court’s ruling in 19925.

6. Union of India v. Virpal Singh Chauhan6 and Ajit singh Januja v Punjab7: In 1995
and 1996 respectively, petitions started to come before the court by the parties
aggrieved by the 77th CAA, 1995 which allowed reservation in matters of promotion
that resulted in candidates belonging to reserved category promoted earlier than
candidates belonging to general category which ultimately resulted in senior general
candidates becoming junior to the reserved promoted candidates which was claimed to
be unfair because the candidates of general category even if joined earlier than reserved
candidates ended up becoming their juniors.

Therefore the Court introduced the principle of Catch Up Rule that Senior General candidates
who were promoted after Reserved candidates would regain their seniority after they get the
promotion. So basically, they will catch up.- (Later Nullified by the 85th Constitutional
amendment, 2001 amending Art. 16(4A) ).

7. 85th Constitutional Amendment Act, 2001: Till this amendment, 16(4A) didn’t had
the principle of consequential seniority i.e. Reserved category candidates were not
considered senior by as a consequence of their promotion. The rulings of Apex Court
in Virpal singh and Ajit singh were also a bar on such consequential seniority.

However, after the 85th C.A.A. 2001 amended the language of Art. 16(4A) and amended the
provision which now says that:

‘Nothing in this article shall prevent the State from making any provision for reservation in
matters of promotion, with consequential seniority, to any class or classes of posts in the
services under the State in favor 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’

5
Indra Sawhney & Others v. Union of India 1992 Supp 2 SCR 454
6
1995 SCC (6) 684
7
1996 AIR 1189

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8. S. Vinod Kumar v. Union of India8: One more worth noticing judgment of the Apex
Court came in the year 1996 where the court held that Relaxation in qualifying in
matters of promotion was not permissible in view of the command contained in Art.
335 of the Constitution which essentially says that Reservation is subject to the
principle of administrative efficiency. (Later nullified by 82nd Constitutional
amendment, 2000)

The relevant provision of the Constitution is as follows:

Art. 335. Claims of Scheduled Castes and Scheduled Tribes to services and posts: 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

9. 82nd Constitutional Amendment Act, 2000: In response to the ruling of Apex Court
in S. Vinod Kumar’s case, which now essentially caused hindrance in making a policy
of relaxing qualifying marks for reserved category candidates in matters of govt. jobs
or promotion, the legislature brought this amendment which added a proviso to Art.
335 which says that:

‘Provided that nothing in this article shall prevent in making of any provision in favor 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 or
promotion to any class or classes of services or posts in connection with the affairs of the Union
or of a State.’

It is worth mentioning that the 82nd CAA, 2000 essentially eviscerated the power of Art. 335
of the original Constitution.

10. M. Nagraj v. Union of India9: All four of these Constitutional amendment Acts from
77th, 81st, 82nd and 85th were challenged before the Apex Court in this landmark case.
The Court upheld the Constitutional validity of all four of these Constitutional
amendment Acts but it introduced certain controlling conditions, which made it rather

8
(1996) 6 SCC 580
9
AIR 2007 SC 71

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challenging for the legislature to now grant reservation in matters of promotion in govt.
jobs. The Court upheld:
• 77th CAA, 1995 which provided for ‘Reservation in promotion’ by adding Art. 16(4A).
• 85st CAA, 2001 which introduced ‘Consequential Seniority’ by amending Art. 16(4A).
• 81st CAA, 2000 which introduced ‘Carry Forwawrd Rule’ by adding Art. 16(4B).
• 82nd CAA, 2000 which added ‘Proviso’ to by amending Art. 335.

The Court also held that 16(4A) and 16(4B) are enabling provisions and not guaranteed
Fundamental Rights so there is no automatic right to reservation in promotion. The three
controlling conditions that court introduced in M. Nagraj v. Union of India are as follows:

a. Demonstrate Backwardness of SCs and STs

b. Prove that SCs and STs are inadequately represented in concerned public
employment
c. Maintain overall efficiency of administration

After M. Nagraj case of 2006, which introduced three compelling conditions, various High
Courts and Supreme Courts struck down statues and rules extending reservation in promotion
policies. The State had failed to furnish enough data to meet the controlling conditions. Some
of the cases are Suraj Bhan Meena v. State of Rajasthan where Supreme Court upheld Rajasthan
High Court order quashing Rajasthan govt. notification without acquiring quantifiable data
fulfilling the 3 conditions. U.P. Power corporation v. Rajesh Kumar where Supreme Court
struck down specific 1991 rule of UP govt. on similar grounds. S. Paneer Selvam v. State of
Tamil nadu where Consequential seniority was held not applicable as precondition of data
furnishing was not met. Chairman & managing director, Central bank of India v. C.B.I. SC/ST
employee welfare association where it was reiterated that Art.16(4A) and (4B) are mere
enabling provisions and provide no Fundamental rights to seek reservation in promotion.
Suresh Chandra Gautam v. State of UP where it was again reiterated that there is no
Fundamental right to seek reservation, hence prayer for issuance of writ of mandamus to the
state to form a committee to look into backwardness and inadequate representation claim of
SCs/STs for granting reservation in light of direction issued in M. Nagraj v UOI is dismissed.
State is not duty bound but has discretionary powers to provide reservation.

11. B.K. Pavitra v. Union of India (I): In 2017, the court held Karnataka Reservation Act,
2000 unconstitutional since three conditions of M. Nagraj were not met.

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12. Jarnail Singh. Lacchmi Narain Gupta10: In 2018, another major change came. The
court modified the 3 conditions rule laid down by it earlier in M. Nagraj v. UOI in 2006.
Out of three conditions laid down, the Court replaced the first condition of
‘Demonstration of backwardness of SC/ST’ with ‘Principle of Creamy layer
exclusion’. Therefore the new three conditions as laid down by the Court are as follows:

a) Principle of Creamy layer exclusion

b) Prove that SCs and STs are inadequately represented in concerned public employment
c) Maintain overall efficiency of administration
13. B.K. Pavitra v. Union of India (II)11: When Karnataka govt. brought the Reservation
Act, 2018 after fulfilling the three conditions of M. Nagraj, the Court upheld its
Constitutional validity in 2019. The Court didn’t look at the data on backwardness
because Jarnail singh’s ruling had replaced it with the Principle of Creamy layer
exclusion. The State of Karnataka backed the Act with quantifiable data this time
satisfying the Court that both SCs and STs are inadequately represented and that the
policy wouldn’t adversely affect the efficiency of administration. The Court upheld the
Act despite the fact that State had failed to apply the ‘Creamy layer exclusion’ test
based on reasoning that the test only applies at the stage of Reservation in promotion
and not at the stage of determining consequential seniority.
14. Jaishri Laxmanrao Patil v. Union of India12(Maratha Reservation Case):
Maharashtra State Reservation (of seats for admission in educational institutions in the
State and for appointments in the public services and posts under the State) for Socially
and Educationally Backward Classes (SEBC) Act, 2018 was the center of dispute which
aimed at providing reservation to the ‘Maratha Community’. The 5 Judge
Constituional bench of the Apex Court held in majority that the Act if given effect
would violate the 50% limit on total reservation laid down by this Court in its judgment
of 1992 in Indira Sawhney v. UOI. Though there were certain exceptions to the rule as
per the operating part of the earlier judgment, this Act of 2018 doesn’t fall within those
exceptions.
• In effect, the Bench held the Act of 2018 unconstitutional.
• 50% Limit upheld.

10
(2018) 10 SCC 396
11
2019 SCC Online SC 694
12
LL 2021 SC 243

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• The States no longer have the power to identify SEBCs (socially and educationally
backward classes) after 102nd Constitutional Amendment Act, 2018 amending Art.
342A which only authorizes the President to identify SEBCs.
15. 105th Constitutional Amendment Act, 2021: This is the latest constitutional
amendment after the Maratha Judgment which declared Maharashtra State Reservation
for socially and educationally backward classes (SEBC) Act, 2018 as Unconstitutional
by upholding 50% limit rule & simultaneously denying the state govt. any power to
identify SEBCs in light of 102nd CAA, 2018 which amended Art. 342A and took away
the powers of State govt. to identify any SEBCs.

This Constitutional Amendment of 2021 again amended Art. 342A and added clause (3) giving
back the States their power to identify SEBCs. The new text of Art.342A(3) reads as under:

‘Notwithstanding any contained in clauses (1) and (2), every State or Union territory may,
by law, prepare and maintain, for its own purposes, a list of socially and educationally
backward classes, entries in which may be different from the Central List’

CONCLUSION:

The present position of law can be summarized as follows:

• Reservation in matters of promotion is valid13.

• Carry forward Rule in govt. jobs valid14.
• Consequential Seniority in matters of promotion valid15.
• Relaxation in qualifying marks and lowering down the standard of evaluation for
candidates belonging to SCs and STs is not in violation of Art. 33516.
• Total Reservation given to SCs, STs and OBCs cannot exceed 50%17.
• Union as well as State govt. have the power to identify SEBCs (socially and
educationally backward classes)18.

13
Art. 16(4A) via 77th CAA, 1995
14
Art. 16(4B) via 81st CAA, 2000
15
Art. 16(4A) via 85th CAA, 2001
16
Art. 335 via 82nd CAA, 2000
17
Indra Sawhney & Others v. Union of India 1992 Supp 2 SCR 454
18
Art. 342A via 105th CAA, 2021

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• The three controlling conditions19 regulating the govt. power to provide reservation are
compliance of principle of creamy layer exclusion, proof of inadequate representation
of SCs and STs in concerned govt. jobs and maintenance of principle of efficiency of
administration.

19
Jarnail Singh. Lacchmi Narain Gupta (2018) 10 SCC 396

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