AMITY UNIVERSITY

_______
R A J A S T H A N_______

AMITY LAW SCHOOL

CONSTITUTIONAL LAW

ARTICLE
RESERVATIONS: RESTORATION OF EQUALITY THROUGH INEQUALITY

SUBMITTED TO: SUBMITTED BY:

Prof. Hemant Singh Advika Karun & Rashi Bisht
Assistant Professor BA LLB(Hons.)
Constitutional Law Semester – IV
ALS – AUR A21511121007, A21511121009

RESERVATIONS: RESTORATION OF EQUALITY THROUGH INEQUALITY

 Advika Karun & Rashi Bisht

ABSTRACT
Reservation is a system of affirmative action in India that provides historically disadvantaged
groups representation in education, employment, government schemes, scholarships and politics.
In other simple words the term ‘Reservations’ refers to a provision to reserve. Reservation in
Indian law is a form of affirmative action whereby a percentage of seats are reserved in the
public sector units, union and state civil services, union and state government departments and in
all public and private educational institutions, except in the religious/ linguistic minority edu-
cational institutions, for the socially and educationally backward communities and the Scheduled
Castes and Tribes who are inadequately represented in these services and institutions.
The system of reservation existed in India even before independence. Post-independence the
system of reservation was framed by the Constituent Assembly which was chaired by Dr. BR
Ambedkar.
The concept however has always been subjected to a series of discussions and debates as a
number of potential people in India lose their opportunity to back a seat for themselves at higher
positions merely because of the quota of seats that is to be provided to the backward classes and
minority sections of the society for their upliftment.
The following article discusses the provision of reservation, the various recommendations
presented, the role of Mandal Commission, the dissenting opinions of people which helps to
apprise its readers about the concept and draw conclusions on whether the same does restore
equality in the society.
Keywords – Article 15 & 16, Backward Communities, Minority Section (Economically Weaker
Sections), Mandal Commission, Equal representation.

INDEX


2nd year student, Amity Law School, Rajasthan. We would like to thank Mr. Hemant Singh Sir for keeping faith in
us, for guiding and to help us improvise on our writing and researching skills.
 S.NO. TOPIC
1. INTRODUCTION
2. A PEEP INTO THE HISTORY
3. MANDAL COMMISSION
4. PUBLIC OPINIONS AND CRITICAL ANALYSIS
5. EXPLORING THE ROLE OF COURTS
6. CONCLUSION

INTRODUCTION
The term ‘Reservation’ signifies the provision to reserve. Post Independence, it was framed by
the Constituent Assembly which was chaired by Dr. BR Ambedkar. It is a system introduced in
India that provides historically disadvantaged groups representation in education, employment,
government schemes, scholarships and politics. Under this system, a percentage of seats are
reserved in the public sector units, union and state civil services, union and state government
departments and in all public and private educational institutions, except in the religious/
linguistic minority educational institutions, for the socially and educationally backward
communities and the Scheduled Castes and Tribes who are inadequately represented in these
services and institutions.
The concept of reservations and its purpose has been specified under Article 15(4), 15(5), 15(6)
and Article 16(4) and 16(6) as an exception of Fundamental Right for SCs (Scheduled Caste),
STs (Scheduled Tribe), OBCs (Other Backward Classes) and EWS (Economically Weaker
Sections) of society. According to the above - mentioned clauses:
Article 15(4), “Nothing in this article or in clause (2) of article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally backward
classes of citizens for the Scheduled Castes and the Scheduled Tribes.”
It was held that the above – mentioned article is discretionary and no writ can be issued to effect
reservation. Such special provision may be made not only by the Legislature but also by the
executive.1
Article 15(5), “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.”
1
Dr. Gulshan Prakash v. State of Haryana, AIR 2010 SC 288
Article 15(6), “Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2)
of article 29 shall prevent the State from making-
(a) any special provision for the advancement of any economically weaker sections of citizens
other than the classes mentioned in clauses (4) and (5);
(b) any special provision for the advancement of any economically weaker sections of citizens
other than the classes mentioned in clauses (4) and (5) 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, which in the case of reservation would be in addition to the existing
reservations and subject to a maximum of ten per cent. of the total seats in each category.2
Article 16(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.
Article 16(4A), “Nothing in this article shall prevent the State from making any provision for
reservation fin 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”
Article 16(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 percent reservation on total number of vacancies of that year3”
Article 16(6), “Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any economically weaker sections of citizens
other than the classes mentioned in clause (4), in addition to the existing reservation and subject
to a maximum of ten percent of the posts in each category.4”
Thus, the two main purposes of reservations as can be summed up from the concerned clauses of
article 15 and 16 are:
 Advancement of SCs, STs, OBCs and EWS of society by reserving a fixed number of
seats i.e. 50% in educational institutions.
It has been held that the State can reserve seats for the above – mentioned classes in
private organizations without any restrictions or limitations thus overruling the
interpretation made by a bench of five judges in Islamic Academy of Education v. State of
2
Article 15 0f The Constitution of India
3
Indira Sawhney v. Union of India
4
Janhit Abhiyan v. Union of India
 Karnataka5 and the interpretation of a bench of 11 judges in T.M.A Pai Foundation v.
State of Karnataka6.
 Advancement of SCs, STs, OBCs and EWS of society by reserving a fixed number of
seats economically.

A PEEP INTO THE HISTORY

 William Hunter and Jyotirao Pule were the propounders of the idea of a caste - based
reservation system in 1882.
 The reservation system prevalent in current times was introduced in 1933 when British
Prime Minister Ramsay and his MacDonald awarded a joint award. The award was
offered to Muslim, Sikh, Indian Christian, Anglo-Indian, European and Dalit voters.
 After lengthy negotiations, Mahatma Gandhi and Dr. BR Ambedkar signed the "Poona
Accords". It was thus decided that there would be a single Hindu voter with certain
reservations.
 Initially, immediately after independence, only SC and ST could enjoy the provisions of
the same. It was only after the recommendations made by the Mandal Commission in
1991 that the category of OBC was introduced under the system of Reservation.

MANDAL COMMISSION

 In December 1978, the then President of India appointed a commission under the
chairmanship of B.P. Mandal by exercising the power conferred to him by Article 340
of Indian Constitution.
 They were supposed to determine the criteria for defining “socially and educationally
backward classes” of India.
 They were also required to recommend the ways for their upliftment.
 According to the report submitted by the Commission, 27% government jobs must be
reserved for OBCs.
 They developed eleven ways in which one could identify and classify the weaker
sections.

PUBLIC OPINIONS AND CRITICAL ANALYSIS

5
(2003) 6 SCC 697
6
(2002) 8 SCC 481
Despite the fact that India is the world's largest democracy, the caste system has caused a
plethora of problems. The caste system has been a key component of Indian society for as long
as anybody can remember. Indian authorities saw that oppressed people did not fully represent
India in the process of nation-building. It was determined that for thousands of years, these
oppressed people were denied any possibilities, did not acquire sufficient education, and were
economically stifled. As a result, in order to better the lives of the lower castes, the Indian
government established caste-based reservation in government positions and educational
institutions
However, because SCs and STs had reservation quotas, other castes began to seek reservations as
well, and the situation rapidly became out of hand. The Supreme Court finally issued a decision
requiring that total reservations never exceed 50%. If all minority populations received
reservations, the majority or upper class would no longer receive a fair allocation of seats
according to their entire population. Things were heated at this point, and confrontations based
on caste reservations occurred. People began to call India's whole reservation system into
question. People began to split as a result. Reservation arguments for and against began to arise.

 Advantages Of Caste-Based Reservation in Education

1. Increased involvement of members of lower socioeconomic groups in different decision-

making processes, leading to equitable representation from all socioeconomic categories.
2. Equal chances for worthy candidates: This has helped certain marginalized persons
advance in the public and private sectors, obtaining greater jobs or services.
3. Human rights and justice implementation: It has motivated individuals to seek justice
when their rights are infringed.
4. Economic equilibrium in society: Reserving has made it more difficult to move from
poverty to prosperity and vice versa.
5. India needs caste-based reservation as a result of historical injustice, maltreatment, and
neglect of lower social strata.
6. Level playing field: Because it is difficult for those from the economically backward
sections who have historically been disadvantaged to compete with those who have had
access to those resources for centuries, reservations help to level the playing field.
7. Equality vs. Meritocracy: While meritocracy has value, it is useless without equality.
Regardless of merit or if it accelerates or retards a part, everybody should be held to the
same standard. Caste-based reservation therefore aids in bridging the gap between upper
and lower castes.
8. Administration quality: A research found that reservations really increased administration
efficiency rather than reducing it.
 Disadvantages Of Caste-Based Reservation in Education

1. Potential for new castes to emerge in society: In comparison to persons from backward
castes, poor people from advanced castes continue to have no socioeconomic advantages.
If things stay this way, a distinct backward caste made up of members of the advancing
castes' lower socioeconomic classes may develop.
2. Only for the benefit of the privileged: Reservations primarily help the dominant caste in
backward castes or the creamy layer. The marginalized minority thus continues to be
marginalized.
3. Contra meritocracy: If chances are offered to unworthy individuals, the calibre of
personnel and students working in different institutions would decline.
4. Short-term alleviation A reservation only temporarily and in a limited way solves the
concerns of chronological unfairness.
5. This is an ethnic barrier and constitutes ethnic discrimination. It fosters caste and
religious peace and serves as a deterrent to racism and casteism.
6. Reservation agitations, like those that took place during the Mandal Commission, have
the potential to cause societal turmoil (1990).
7. The already wealthy get increasingly wealthier: As the reserve develops popularity, it
shifts from being a means of inclusion to one of exclusion. As we can see, the reserve
issue has significantly harmed the previously privileged areas. Many meritorious upper
caste individuals continue to live in poverty and are illiterate.
8. Reservations are sometimes the polar opposite of equality and growth. We presently
simply help individuals who have merit but lack money, with no caste- or religion-based
reservations required in education. Caste prejudice would be eradicated in this manner,
and the economically powerful would band together to aid the economically weak,
regardless of caste.
9. If caste-based reservation is employed as a legitimate form of positive discrimination to
the advantage of the downtrodden and the underprivileged, it is undoubtedly helpful.
However, when it seeks to destroy society and guarantees special privileges for a select
few at the expense of other impoverished people for certain political purposes, as it does
in the current situation, it should be removed as quickly as feasible.
10. Everyone should be given an equal opportunity to prove their worth rather than
discussing what comprises the "creamy layer" and how it should be defined. In society,
nobody should be given handouts. Instead, sufficient resources should be made available
to them, and merit should ultimately prevail. Casteism is encouraged rather than
eradicated by this policy.

 Critical View on Reservation policy

In my opinion, India's educational system should be segregated. Because of this, people can also
receive decent and higher education, but there shouldn't be any discrimination while applying for
jobs or public service. A person who has completed his education and received the advantage of
reservations for nearly 22 to 25 years. He must now stand on his own two feet and take on the
market rivalry. They currently possess all the possessions that someone born into a different
caste would have.
If government still wants to keep reservation policy then now it should not be based on caste or
class, it should be based on the annual income of the person. If the person is earning less than he
requires more money for his family and children and this thing he can get only by a job or in
public service. By this means only such persons can provide good education to their children.
The judicial branch has been heavily involved in the reserve policy. The cases of N. Nagrajan,
Ashok Kumar Thakor, and Indira Shawnay are excellent examples of this. The Supreme Court
only mentioned the SC & ST job reservations in passing in this case. However, the Supreme
Court has ruled that reservations should never be raised over 50% under any circumstances.
However, in most of the North Eastern states, reservations have already been raised to 85%, and
there are currently plans to raise them to 95% without any action from the court. In this way, we
can see that the court is likewise contributing to the expansion of SC & ST reservations.
Politicians now have a big say in how reservations are handled. The reservation policy was only
in place for ten years after independence, for the advancement of SC and ST, but it is still in
place today and no action has been made to modify, revise, or alter it. The number of SC and ST
in the nation is the cause of this. Due to the fact that SC and ST make up about 33% of the voting
population, any changes to the reservation policy that are made at the expense of SC and ST
would result in severe consequences. Therefore, they are not violating the reservation regulation
in any way.
Considering John Rawles' idea of justice, it is apparent that "the starting point should be / must
be the same for all the Persons." We are giving everyone the same queue by implementing
reservations in the educational institutions. He said that there is no need for reservations in the
workforce and that by promoting equality in education, all people are given an equal chance to
succeed.

We completely concur with John Rawles' position on reservations. Clearly, the current
reservation policy has to be revised.

EXPLORING THE ROLE OF COURT

M. R. Balaji v. State of Mysore7
The government's 68% reservation on college admissions was deemed excessive and
unreasonable, and was capped at 50%.

Indira Sawhney & Ors. V. Union of India8

The constitution recognized social and educational backwardness, but not economic
backwardness. The court upheld separate reservation for OBC in central government jobs, but
excluded these to the "creamy layer" (the forward section of a backward class, above a certain
income). At no point should the reservation exceed 50%.

Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India 9

Upheld the "carry forward rule" of the railway board in a selection of posts above 50%
reservation, allowing for "some excess". However, this was overruled in Indra Sawhney &
Others v. Union of India which held that reservations cannot be applied in promotions.

Ashok Kumar Thakur v. Union of India10

Upheld the 93rd Amendment; found creamy layer principle applies to OBCs and not STs and
SCs. The government must set reservation thresholds to ensure quality and merit do not suffer,
and set a deadline to reach free and compulsory education for every child.

Janhit Abhiyan vs Union Of India11

Upheld the 103rd Amendment which introduced 10% reservation for Economically Weaker
Section (EWS) in education and public employment.

CONCLUSION

7
AIR 1963 SC 649
8
AIR 1993 SC 477
9
(1981) 1 SCC 246
10
2007 RD-SC 609
11
Writ Petition (Civil) No(S). 55 OF 2019
The weaker sections of the society were prone to discrimination based on their castes and were
subjected to cruelty since ages in India. Owing to the same, neither were they admitted in any
educational institutions nor could they secure a job for themselves. This hindered their growth
and restricted them from uplifting their own status. The Constitution of India thus, through
reservations aimed to uplift the weaker sections of the society both educationally and
economically by reserving a fixed number of seats.
However, this provision reduced the opportunities for the people belonging to general class of
the society. They irrespective of their qualifications have been denied a seat in educational
institutions and from securing a seat for employment. People from the socially and educationally
weaker sections of the society could secure a seat for themselves even when they were not
qualified for the same.
Thus, the system of reservations aims to create equality for the socially and economically weaker
sections of the society by creating inequality amongst the general category of citizens.
Since, important and significant positions are being held by the unqualified (or less qualified)
socially and economically weaker sections of the society, the country’s growth process is
hindered.