DEPT.

OF LEGAL SCIENCE

PROJECT

ON

“RIGHT TO EQUALITY IN THE LIGHT OF

RESERVATIONS IN INDIA “
SUMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE AWARD
OF THR DEGREE OF BACHELOR OF LAWS

SUBMITTED BY

NAME: SANTONU GHOSH

ID NO: 221001503031

PAPER NAME: CONSTITUTIONAL LAW

PROGRAM AND SEMESTER: THIRD SEMESTER

SUBMITTED TO

Ms.”SREYA CHAKRABORTY”

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Abstract
A common debates in Indian is to equate affirmative action with the reservation
of seats in academic institutions and the reservations of posts in public
employment. This popular misunderstanding was entrenched in the 1990s with
the intense media focus on the Mandal Commission’s Recommendations. Marc
Galanter’s socio-legal study of affirmative action programmes in India – titled
‘Competing Equalities’ 3 – provides us with a broad typology of the nature of
programmes being pursued to advance the interests of the lower and weaker
castes. These programmes range, besides the current reservations model, from
the preferential allotment of petrol bunks and other state assistance to
scholarships and the construction of hostels for lower-caste students. Debates on
affirmative action often ignore the reservation of seats in different levels of
government for women and Scheduled Castes and Scheduled Tribes, which are
arguably the most important programme currently in operation. This paper
analyses the efforts of the Government of India, starting in the colonial period,
to use a reservations policy to benefit the Scheduled Castes. The question to be
answered is whether nearly seven decades of implementing reservations have
paid off in terms of giving backward people a bigger stake in Indian society.
The thrust also argument is that the origins of untouchability make reform
difficult, that Dalits in many parts of India remain targets of discrimination and
abuse, and that extensive government remedial efforts have often been
inefficient and even corruption prone, but that overall Dalits as a group have
made significant progress.1
Introduction
Right to Equality is the first fundamental right assured to the people of India.
Article 14-18 of the Constitution guarantees this right to every citizen of India.
Equality is one of the magnificent corner-stones of the Indian democracy. “In
other constitutions generally this right embodied in Article 14. As such this
right was considered to be a negative right of an individual not to be
discriminated in access to public offices or places or in public matters generally.
It did not take account of the existing inequalities arising even from public
policies and exercise of public powers. The makers of Indian Constitution were
not satisfied with such type of undertaking. They knew of the widespread social
and economic inequalities in the country sanctioned for thousands of years by

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public policies and exercise of public power supported by religion and other
social norms and practices.” This gives us an idea that the right to equality is
more basic than natural law itself. Thus in its creation, the state is obliged to
provide for this right, not just legally but functionally. The preamble of India
constitution contains the phrase: “Equality- social political and economic”
These are different types of equalities and the state has to ensure that its citizens
are provided with each and every one of these. Social equality is the most
common in pluralistic societies but no provision of law can be made in this
regard. So, it is done by means of the other two categories- political and
economic. Political inequality materializes from the said social inequality but as
politics is a government functionary, legislations are made to guarantee this
right. On the other hand economic inequality is a very practical phenomenon
and thus active steps can be taken to empower all people economically. This, in
retrospect, hampers social inequality because economic status is closely
connected with social status. Thus, the state has a burden to justify, through its
legislations and its implementation that equality is sought to be achieved and
only in doing so will it realize true equality. 2
Equality before law
Equality before law is well defined under the Article 14 of the Constitution
which ensures that every citizen shall be likewise protected by the laws of the
country. It means that the State will not distinguish any of the Indian citizens on
the basis of their gender, caste, creed, religion or even the place of birth. The
state cannot refuse equality before the law and equal defense of the law to any
person within the territory of India. In other words, this means that no person or
groups of people can demand for any special privileges. This right not only
applies to the citizens of India but also to all the people within the territory of
India. Article 14 mandates that the State shall not deny equality before law and
equal protection of laws to any person within the territory of India. By
incorporating in Article 14 the British doctrine of rule of law as propounded by
Prof. Dicey and the "equal protection of law" clause of 14th Amendment of the
U.S. Constitution, the framers of our Constitution had in their zeal infused extra
vigour and vitality in the right to equality. However, Parliament has repeatedly
tried to curtail the scope and vigour of Article 14 in order to carry out the
welfare programs. Apart from it, the Supreme Court had sapped some of the
vigour of Article 14 by showing "fanatical reverence" to the theory of
classification or the nexus tests. Thus the Supreme Court has evolved two

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different and distinct doctrines for tackling attack on State action on the ground
of violation of Article 14. An attempt is being made in this paper to analyze
objectively the merits and demerits of the old and new doctrines. It is only
understandable that our Supreme Court should have applied the theory of
classification, evolved by the American Supreme Court for giving content and
true meaning to right to equality. According to this doctrine "equal protection of
laws" prohibits class legislation but permits reasonable classification of persons
or things. By expressly incorporating in the second part of Article 14 the
language of the 14th Amendment of the U.S. Constitution, the Constituent
Assembly impliedly had approved the interpretation of that clause by the U.S.
Supreme Court. Hence, from the very beginning the Indian Supreme Court has
had no hesitation in applying the theory of classification while testing the
Constitutional vires of legislations and State actions impugned on the basis of
their being violative of Article 14. The classic nexus test was enunciated by S.R.
Das, J. in the Anwar Ali Sarkar case.3
Reservation policy in India
In the case of India, the reservation policy has been adopted for alleviating
inequalities in the political and economic spheres. This is a method of achieving
substantive equality. India is a pluralistic society where main forms of
discrimination are caste and religion. India being a male dominated society, sex
is also an important basis for inequality. The constitution swears not to
discriminate on any of these grounds and hence we have a reservation policy for
the protection of the interests of all discriminated groups. The problem arises in
targeting this group and meeting the ends for which reservation is created. In
law, there are two principles that have to be complied with before legislating it.
First, there should be a rationale for creating the said law and second, there
should be nexus between the law and the goal sought to be achieved. The
rationale has been justified time and again by our legislators and people have
come to terms with the fact that there is no other way to subdue discrimination
than reservations. But is there a direct link between the provisions of this policy
and the ultimate goal of equality? The answer to this question keeps changing
from time to time and that is what we are trying to analyse in this paper.
The minorities in India started getting recognized by law through the provision
of communal electorates. This was seen as one of the reasons for the partition of
India and Pakistan, but from the viewpoint of equality, this was one of the first
efforts to bring about political equality and avoid discrimination against

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minority communities. The reservation policy in the basis of caste started when
the Simon Commission came to India with the rule of separate electorates and
reservations for depressed classes. But a concrete legislation was passed only
later on after independence when Dr. B.R. Ambedkar fought for the rights of the
SC’s, ST’S and OBC’s. During the constitutional assembly debates, he
supported the cause of backward castes time and again and believed that
reservation policy is the only way to eradicate these disparities. However, the
reservation policy was always a provisional one and not permanent. For years
now, the time limit has been increasing as the government did not feel that the
required amount of equality has been achieved in the social, economic or
political life of people.
The rationale of the present reservation system
The question we need to ask is if the present reservation system is a true
reflection of the altruistic persuasions of the legislators or that of their political
interests and/or political pressures. The truth is that inequality is prevalent
everywhere in different forms. The constitution only provides for or recognizes
a part of them. For example, disability is also grounds for discrimination.
However, the limited reservations made for them are never objected or
extended. In public sector, 3% is the reservation for disabled persons where as it
is 27% for OBC’s when in fact; the percentage of disabled people in India is
more than the percentage of OBC’s. Why is this so? Law is subject to the
interpretation of the courts and the dynamic nature of law finds its sanction in
the opinion of the judiciary. But, courts regularly deal with cases regarding
reservations for SC/ST’s or OBC’s or women, and not for the disabled. Does
the meaning of equality change in every context? To provide “equal
opportunities” to the oppressed classes means, to help them acquire their
maximum potential- not to make things easier for them. This is a lesson one
should learn from the history of independent India.
The other issue under the system of reservations is that of the creamy layer. The
distance that we have travelled after enacting reservations has eliminated certain
disparities. Caste no longer can be the sole criterion for detecting socially
backward classes because some of them have achieved economic status, thereby
finding a social standing as well. Thus, in the Mandal commission case, the
court has observed that this particular strata of the society which they termed as
the “creamy layer” should be eliminated from such reservation policies as it is
hampering the goal of the provision. However, what goes beyond my
comprehension is that if a creamy layer exists despite being a socially backward
class, maybe the objective is achieved. The law has different reasoning to

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support this policy from time to time but how would we identify the situation
where the “goal” is truly reached. Waiting for absolute equality is not practical
as it is only a utopist situation. Meanwhile resistance is offered by the classes
which are not socially backward, also for the reason of discrimination. In such a
situation what kind of help is the government providing with the reservation
scheme? This is the dilemma that is struck the entire policy down. 45
Mandal Commission
P. Mandal being its chairman submitted a report in December 1980 that used
figures of 1931 census stated that the population of OBCs, which includes both
Hindus and non-Hindus, was around 52 per cent of the total population
according to the Mandal Commission. The assumption made by Mandal
Commission based on 1931 census and other parameters that more than 50
percent of population belong to OBC (Other Backward Caste) may not have
been correct.
The National Sample Survey 2003 Round suggests that the non-Muslim OBC
number may be around 32 percent and not 50 percent. Muslim OBCs are around
4 percent. It was argued by various organization that OBC faced no such
discrimination and thus the ‘caste argument’ advanced in favor of OBC
reservations is fallacious. If the logic of this assertion is accepted, then the
OBCs can claim reservations on the basis of economic criteria at par with the
poor and underprivileged classes among other castes, Muslims and other
minorities. It is also a fact the upper OBCs have become economically powerful
in many states and thus they do not qualify on the basis of economic criteria.
Reservation of 27 percent was recommended owing to the legal constraint that
the total quantum of reservation should not exceed 50 percent.
The commission was criticized by various groups because the upper backward
castes like Yadav and Kurmis, Jats, Thevars, Goundas, Okkaligas and Gujars
are notorious for exploiting the most backward castes and were considered as
the worst perpetrators of caste atrocities in rural India. These castes were
economically well-off. But the Mandal Commission Report totally ignored
economic criteria and emphasized only social criteria. Thus, the Mandal
Commission purposefully tried to advance the interests of the band of castes
which were economically and socially more advanced. 6

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Pylee MV. India’s Constitution. S Chand and Company. Bombay 1967, 101.
6
Report of the Commissioner for Scheduled Castes and Scheduled Tribes

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Scope and Operation of schemes
Article 15(4) and Article 16(4) permit special provisions for backward classes.
Article 15(4) applies to the State in all of its dealing while Artic1e 16(4) is
confined specifically to the field of Government employment. It has been held
that more general fundamental right provisions are displaced in relation to a
certain area by provisions specifically pertaining to that area. Thus the area of
employment, offices and appointments under the State is controlled by Article
16 alone and preferences in this area must be within the scope of Article 16(4).
This includes judicial office as well as administrative posts, but it does not
include elective office Article 15(4) extends to all areas of Government activity
which are not controlled by a more specific provision. The expression “any
provision” in Article 16(4) and “any Special provision” in Article 15(4) gives
the State leeway in prescribing the method of operation for such schemes.
The Supreme Court has upheld the position that reservations are not to be
construed as compartments. A Scheduled Tribe candidate who had made the
special declaration required to stand for the reserved seat in a double-member
Parliamentary constituency was held not disqualified from being elected to the
general seat. The Supreme Court found the reservation by virtue of Article 330
was to be construed as a guaranteed minimum and not as a. barrier to election to
additional unreserved seats.
Art. 16 (4) has been held to allow a State to provide that its Public Service
Commission may give preference to Scheduled Caste teachers in filling
vacancies in State-aided schools run by religious minorities. The Constitution
itself does not define these groups nor does it provide any standard by which
they may be determined whereas Scheduled Caste and Schedule Tribe are
defined under Article 366(25) & (26) respectively. Whereas Art., 16(4) refers to
“any backward class,” Art. 15(4) mentions classes that are “socially and
educationally backward.” If the difference in expression, never explained, can
support any inference, it is that Article 15(4) covers a narrower class of groups
while Art. 16(4) include as well those backward in other respects than “socially
and educationally.” It should be noted that Backward Classes Commission and
the Government of India have made no distinction whatsoever.
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EQUALITY AND RESERVATION

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Equality has been promised by State under Article 14 of the Indian Constitution
and Article 14 is considered as the soul of the Indian Constitution because
without equality no country can be considered as republic and it is the need of
equality which have forced human beings to come under state so that they can
get security, equal protection of law and equality in all aspects. In our Preamble,
the word equality is derived from the French Revolution which itself shows the
aims of our Constitution and Article 14 further is a step forward towards the
accomplishment of that aim. Equality itself means that like should be treated
alike and not unlike should be treated like. That is why Article 14 permits
reasonable classification between likes and unlike so that unlike should be given
special treatment to bring them on the equal footing with the likes and in fact
identical treatment in unequal circumstances would itself amount to inequality.
Goal of equality will not be considered to be achieved till everyone will be on
the equal footing. Thus idea to attain equality has given birth to the concept of
reservation or affirmative action. Reservation is a special treatment given to the
unlike till they come on the equal footing with the likes in the society.
Reservation is a concept developed with a view to provide special help to the
weak so that they can overcome their weakness and can compete with the
strong.
In landmark judgments of D.V. Bakshi v. Union of India28 and Air India v.
NargeshMirza29, The Supreme Court’s judgments have proved that inequality
anywhere will never be tolerated and therefore Judgments of these cases have
established new landmarks in the concept of Equality. Equality is a state of
complete justice and in order to attain it reservation is a powerful remedy.
Reservation have proved to be highly successful in many countries for e.g.
United States has affirmative action for blacks and in various other countries
reservation is playing major role in narrowing the gap between different classes.
In the historic Mandal Commission case the Supreme Court by the 6-3 majority
has held that the sub classification of the backward classes into more backward
classes and backward classes can be done for the purpose of Article 16(4).But
as a result of sub classification the reservation cannot exceed more than 50
percent. The distinction should be based on the degree of social backwardness.
In fact such classification would be necessary to help the more backward classes
otherwise those of the Backward Classes who are little more advanced than the
more backward classes might take away all the seats. “Thus reservation and
equality are two sides of the same coin and if equality is the aim then
reservation is the best possible way to reach that aim”. 8

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Observation:
1. Make education mandatory and free for all till age of 15
2. Propose reservation based on economic status
3. Provide opportunity to students to earn while they study.
Instead of introducing reservations for these backward classes what is required
is to bring about revolutionary changes in our education system at the grass-root
level. When proper education is not provided to children belonging to such
categories during the primary stage itself then on what basis are the reservations
provided at a subsequent stage.
Reservations are nothing but means to prosper the vote banks of politicians.
They are hindering the country’s growth, development and competency in all
aspects. On one hand the preamble of our constitution states that we are a free,
democratic and sovereign nation and on the other hand reservation system is
chaining all these aspects into its clutches. It is creating disparity and
differences amongst the people. The constitution lays down that every child has
a right to education and nowhere expresses that any child belonging to a
backward class has a little more of this right than the general category. By
reserving one category against another creates a feeling of division which is
now resulting in a chaos with every small section of the society asking for it.
Reservations on the basis of caste and not on the basis of condition are bad and
unacceptable. Fair and just reservations to uplift the people with poor conditions
of life, those who don’t have meals to eat, clothes to wear and no home to live
in. They shall be made on the basis of factors such as gender as women are
more disadvantaged than men since primitive times, domicile, family education,
family employment, family property, family income and if any disabilities and
traumas. The process of reservation should be such that it filters the truly
economically deprived individuals and bring them all to justice. Thus
reservations are anti-thesis of development and equality. We don’t need
reservations based on castes or religion but only to actually provide aid to those
who have minimal resources; and merit should be given equal and due
importance in admission procedures as well employment opportunities. This
way we would be successful in removing caste discrimination and unite the
economically rich together in helping the economically poor, irrespective of
their castes.
Case law:

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Name of the case: D.V. Bakshi vs Union of India and Others
Name of the court: Supreme Court of India
Petitioner: D.V. Bakshi
Respondent: Union of India and Others
Judgement date: 14 July, 1993
Equivalent citations: AIR 1993 SC 2374, 1994 (46) ECC 1, 1993 ECR 209
SC, 1994 (74) ELT 200 SC, JT 1993 (4) SC 180, 1993 (3) SCALE 69, (1993)
3 SCC 663, 1993 Supp 1 SCR 200
Bench: A Ahmadi, S Mohan
Issues: This batch of cases arises questions relating to interpretation of
Regulations 8 & 9 of the Customs House Agents Licensing Regulations, 1984
(hereinafter called 'the Regulations') made by the Central Board of Excise &
Customs under Sub-section (2) of Section 146 of the Customs Act, 1962. In the
Writ Petitions filed under Article 32 of the Constitution, the petitioners have
questioned the constitutional validity of the aforesaid Regulations which enjoin
the securing of at least 50 marks out of 100 for the oral test on the ground that it
gives arbitrary powers to the authorities to pick and choose the candidates. This
contention is based on this Court's decision in Ajay Hasia etc. v. Khalid Mujib
Sehravardi and Ors. etc. . Before we state the factual background it may be
advantageous to read the relevant Regulations.
Facts: The petitioners challenged the validity of the rule allotting 100 marks
with 50 pass marks for oral test on the ground that it gives arbitrary powers to
the authorities to pick and choose the candidates. The court distinguished the
Ajay Hasia’s case with the present case and held that allotment of maximum
marks for oral test is not arbitrary particularly in case of selections of
professionals .The test which may be valid for competitive examinations or
admissions to educational institutions may not hold good where it concerns
selection for appointments in public services. The test; aid down in Ajay
Hasia’s case cannot apply in matter of grant of license as a Custom House
Agent. No hard and fast rule can be laid down in this behalf as much would
depend on the nature of performance expected for the responsibility to be
handled by the candidate after his selection. The duties, responsibilities and
functions of a Custom House Agent are very special and demanding not only a
high degree of probity and integrity but also intellectual skills, adaptability,
judgment and capacity to take prompt decisions in conformity with the law,

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rules and regulations .Thus, there is justification for an oral test prescribing 100
marks with 50 percent as passing marks in selecting such persons.
Judgement: A fervent appeal was made by the learned Counsel for the
petitioners that having regard to the fact that all the petitioners have passed the
written examination and that some of them had only one opportunity to appear
at the oral examination since they passed the written examination at the third
attempt, one further chance to appear at the oral examination should be
accorded to them as was done in the past under the circular dated May 19, 1988.
The would be a matter on which the concerned authorities would have to take a
decision if the circumstances so permit but it would not be proper for this Court
to issue a mandate once it is found as a fact that the petitioners had the requisite
opportunities under the regulations for clearing the written as well as oral tests.
We may add by way of caution and to avoid any litigation in future if the
authorities decide to give one further opportunity to the petitioners to clear the
oral test it will be by way of grace only and will not confer any right whatsoever
on the petitioners and if the authorities insist on any undertaking to be filed by
the candidates permitted to avail of that extra chance in the present proceedings
that they will accept the result as final and conclusive and will not make it a
ground for further litigation, they will be well within their rights to so insist. If
such undertaking are filed in the present proceedings, the Registry will accept
the same.
For the above reasons, we see no merit in these petitions and dismiss the same
with costs. All interim orders in force will lapse forthwith. 9

Conclusion
Indian Constitution is one of the best and largest written Constitution of the
world. Article 14 of our Constitution is itself soul of Indian Constitution and
even Article 22 is secondary to it because what is the meaning of life when
there is no equality. Indian reservation system has been a major success in
improving the position of the Backward Classes and past decades have shown
remarkable development in position of Backward and Oppressed Classes in
India. Though our reservation system is an outcome of huge amount of research
by commissions and Government agencies like Mandal Commission etc. but
even then somewhere our system is lacking on the applicability part also some
fault are there in identification of the Backward Classes because despite of

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giving so many years of reservation their position have not been developed to
that extent as it should have been. Our present reservation system is caste based
and it has been seen that the upper segment of each class who are forward then
the others are developing and are using maximum benefit of reservation and
also now they have attained both the economic equality as well as social
equality because they are economically sound now while the lower segment of
the same cast are still unaware of their rights of reservation and they are still
backward. In order to equate this inequality which is there in the same caste, the
reservation policy should be based on the economic condition basis so that each
and every individual of this country who is backward socially as well as
economically will get equal chance to develop. Many castes are now
economically forward but still they socially backward. We need some new
methods other than caste based reservations in order to narrow this gap and to
increase them socially.OBC reservation percentage should increase from 27%
because they are 52% of our population while ST and SC’s should get less
reservation because they are 22.5% of our population but still they have 22.5%
of seats reserved for them.

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