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INTRODUCTION

The fundamental rights are given by our Constitution. These rights have a dual aspect. From one point of view, they confer
justifiable rights on the people which can be enforced through the courts. From another point of view, the fundamental rights
constitute restrictions and limitations on governmental action, whether it is taken by the Centre, or a State or a local
government.
The constitution of India guarantees the Right to Equality through Articles 14 to 18. Art. 14 outlaws discrimination in a general
way and guarantees equality before law to all persons. Its aims is to protect persons similarly placed against discriminatory
treatment. It does not however operate against rational classification. Classification to be should fulfill the follwing two tests.
1. it should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial
distinction, which distinguishes persons or things grouped together in the class from others left out of it.
2. The differentia adopted as the basis of classification must have a rational or reasonable relationship to the object sought to
be achieved by the statute in question.
So, "Reservation" is a term in Indian law used to describe the government policy of reserving a set percentage of seats in many
aspects of Indian society, including education, and jobs in government institutes and organizations. Reservation is intended to
increase social diversity in campuses and workplaces by lowering entry criteria and requiring quotas for certain social groups
that are deemed under-represented. These places are set aside for members of "socially and educationally backward classes" or
for the "scheduled castes and the scheduled tribes"--referred to as "untouchables" before India's independence . The word
reservation has attained a particular legal significance in matters relating to public employment. The concept is founded on
separating individuals or groups having certain characteristics (pertaining to backwardness as per Articles 15(4) & 16(4)) from
the general category of candidates and conferring on them the benefit of special treatment. It is discrimination made in favour
of the backward classes vis--vis the citizens in general and has been referred to as Compensatory discrimination or Positive
Discrimination.
The reservation policy is also extended for the Scheduled Castes and Scheduled Tribes for representation in the Parliament of
India. The central government of India reserves 27% of higher education [1], and individual states may legislate further
reservations. Reservation in most states is at 50%, the maximum amount declared constitutional by the supreme court [2], but
certain Indian states like Rajasthan have proposed a 68 % reservation which includes a 14% reservation for forward castes.
Purpose - Reservations are intended to increase the social diversity in campuses and workplaces by lowering the entry criteria
for certain identifiable groups that are grossly under-represented in proportion to their numbers in the general population. Caste
is the most used criteria to identify under-represented groups. However there are other identifiable criteria for underrepresentationgender (women are under represented), state of domicile (North Eastern States, as Bihar and Uttar Pradesh are
under-represented), rural people, etc. as revealed by the Government of India sponsored National Family Health and National
Sample surveys.
The underlying theory is that the under-representation of the identifiable groups is a legacy of the Indian caste system. After
India gained independence, the Constitution of India listed some erstwhile groups as Scheduled Castes (SC) and Scheduled
Tribes (ST). The framers of the Constitution believed that, due to the caste system, SCs and the STs were historically
oppressed and denied respect and equal opportunity in Indian society and were thus under-represented in nation-building
activities. The Constitution laid down 15% and 7.5% of vacancies to government aided educational institutes and for jobs in
the government/public sector, as reserved quota for the SC and ST candidates respectively for a period of five years, after

which the situation was to be reviewed. This period was routinely extended by the following governments and the Indian
Parliament, and no revisions were undertaken.
Later, reservations were introduced for other sections as well. The Supreme Court ruling that reservations cannot exceed 50%
(which it judged would violate equal access guaranteed by the Constitution) has put a cap on reservations. However, there are
state laws that exceed this 50% limit and these are under litigation in the Supreme Court. For example, the caste-based
reservation fraction stands at 69% and is applicable to about 87% of the population in the state of Tamil Nadu (see section on
Tamil Nadu below).
CONSTITUTION MANDATE
The provisions of reservation is covered by Articles 15 and 16 of the Constitution. According to Oxford dictionary, the word
discrimination used in Article 15 means to make an adverse distinction with regard to distinguish unfavourably from others.
There can not be discrimination against one person without corresponding discrimination in favour of someone else. As a
result of 15 and 16, several states have implemented programmes of compensatory or protective discrimination. Each such
program is a departure from the equality norm, but this is permissible as it is for the benefit of the backward sections. Such
programs must be designed and worked in a manner conducive to the ultimate building up of an egalitarian and non
discriminating society. Reservation has been dealt with under Article 15(3), 15(4), 15(5), 16(4), 16(4-A) and16(4-B) of the
Constitution. Article 15(1) and (2) talks of prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth. Article 16(1) and 16(2) talks of equality in matters of public employment. Article 16(4), (4-A), 4-B) are exception to
them.

The Constitution of India has provided, among other various protections and safeguards, safeguards for Public

employment to the persons belonging to the Scheduled Castes and Scheduled Tribes, keeping in view the discrimination and
disabilities suffered by these classes to catch up and compete successfully with the more fortunate ones in the matter of
securing public employment. Specific provisions for reservations in services in favour of the members of Scheduled Castes
and Scheduled Tribes have been made as follows in the Constitution of India:No discrimination on ground of religion etc.
Art 15(1) specifically bars the state from discriminating against any citizen of India on grounds only of religion, race, caste,
sex, place of birth or any of them.
Art.15(2) prohibits subjection of a citizen to any disability, liability, restriction or condition on ground only of religion, race,
caste, sex or place of birth with regard to access to shops, public restaurants, hotels and places of entertainment, or the house of
wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of state funds or dedicated to the
use of general public.
Art 15(1) expresses a particular application of the general principle of equality embodied in Art 14.The combined effect of Art
14 and 15 is not that the state can pass unequal laws, but if it dies pass unequal laws, the inequality must be based on some
reasonable ground only and religion, race, caste, sex, place of birth can not be a reasonable ground for discrimination. The
word discrimination in Art.15(1) involves an element of unfavorable bias.
Article 15(3)
Article 15(3) provides that Nothing in this articles shall prevent the state from making any special provisions for
women and children.
This Article recognizes the fact that the women in India have been socially and economically handicapped for centuries and as
a result thereof, they cannot fully participate in the socio-economic activities of the nation on a footing of equality. The

purpose of Article 15(3) is to eliminate socio-economic backwardness of women and to empower them in such a manner as to
bring about effective equality between men and women. Its object to strengthen and improve the status of women. Article
15(3) thus relieves the state from the bondage of article 15(1) and to enable it to make special provisions for women. The
scope of Article 15(3) is wide enough to cover the entire range of state activity including that of employment. However only
such provisions can be made in favour of women and children under Article 15(3) as are reasonable and which do not
altogether obliterate the constitutional gurantee mentioned in article 15(2). The operation of article 15(3) can be illustrated by
the following few Cases:
Yusuf Abdul Aziz v. state of maharhatra1
In this case it was challenged that Section 497 of I.P.C. under which the offnce of adultery can be committed only by a male
and not by a female who cannot even be punished as an abettor is violative of article 14.The sc held that as this provision
makes a special provision for women, it is saved by article 15(3).
Revathi v. Union of India
In this case it was held that clause (1) to (3) of Article 15, read together would imply state can discriminate in favour of women
against men, but cannot discriminate in favour of men against women.
Vijay lakshmi. V. p u
In this provision for reservation of posts of principal and teachers for women in colleges for girls was upheld as not violative
of articles 14,15 and 16.
Govt. of a.p v. p.b vijay kumar
The sc has ruled in this case that under Article 15(3), the state may fix a quota for appointment of women in government
service. Also a rule saying that all other things being equal, preference would be given to women to the extent of 30% of the
posts was held valid with reference to article 15(3).
Special provision for women : this expression refers to the special provisions which the state makes to improve womens
participation in all activities under the supervision and control of the state and it can be in the form of either affirmative action
or reservation. The provision of giving preference to women amounts o affirmative action. Thus Article 15(3) includes the
power to make reservations for women as well as taking affirmative action.
Article 15(4)
Article 15 (4) provides that Nothing in this article shall prevent the state from making special provision for the advancement
of any socially and educationally backward class of citizens or for the scheduled castes or schedule tribes.
Clause (4)it was added by the constitution (First Amendment) Act, 1951, as a result of the decision of the supreme court in
State of Madras v. Champakram Dorairajan,
In that case the court struck down the communal G.O. OF THE Madras Govt. which, with the object to help the backward
classes, had fixed the proportion of students of each community that could be admitted into the state medical and engineering
colleges. After this amendment clause (4) enables the state to make special provisions for the advancement of socially and
educationally backward classes of citizens or for the scheduled castes and scheduled tribes. Such provisions include
reservation or quotas and can be made in the exercise of executive powers without any legislative support.
Under Article 15(4) in innumerable cases, the reservation of seats for scheduled castes, Scheduled tribes and backward classes
in engineering, medical and other technological colleges has been upheld. Reservations are possible under Article 15(4) for the
1

AIR 1954 sc 321.

advancement of any backward class of citizens or for scheduled castes, s t.


Article15(5)
2008The Supreme Court of India on April 10 2008, upheld the Government's move for initiating 27% OBC quotas in
Government funded institutions. The Court has categorically reiterated its prior stand that "Creamy Layer" should be excluded
from the ambit of reservation policy. The Supreme Court avoided answering the question whether reservations can be made in
private institutions, stating that the question will be decided only as and when a law is made making reservations in private
institutions. The verdict produced mixed reactions from supporting and opposing quarters.
Ashok kumar 2008 Whether Ninety-Third Amendment of the Constitution is against the basic structure of the
Constitution Held, No, the Constitution (Ninety-Third Amendment) Act, 2005 does not violate the basic structure
of the Constitution so far as it relates to the state maintained institutions and aided educational institutions Incase of
private unaided educational institutions, the issue left open to be decided in an appropriate case Clause (5) of
Article 15 of the Constitution inserted by the amending act is an enabling provision which states that nothing in Article
15 or in Sub-clause (g) of Clause (1) of Article 19 would prevent the State from making any special provision 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 the educational institutions including
private educational institutions, whether aided or unaided by the State Minority educational institutions referred to
in Clause (1) of Article 30 to be excluded Act 5 of 2007 was enacted to provide reservation of seats for Scheduled
Castes, Scheduled Tribes and SEBCs of citizens in Central Educational Institutions
Held, Article 15(5) constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory Both Article
15(4) and 15(5) are enabling provisions and operate in different areas
Article 16(1): There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any
office under the State.
Article 16(4): Article 16 provides for equality of opportunity for all citizens in matters relating to employment or appointment
to any office under the State, Nevertheless, 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.
There have been two Constitution Amendments incorporated in Article 16(4), they are:Article 16 (4-A) : Nothing in this article shall prevent the state from making any provision for reservation in matters of
promotions, with consequential seniority, to any class or classes of posts in services under the state in favour of SCs/STs which
in opinion of state, are not adequate by represented in the services under the state.
The 77th Amendment to the Constitution has been brought into effect permitting reservation in promotion to the Scheduled
Castes and Scheduled Tribes.
Thus, by amending the Constitution, the Parliament has removed the base as interpreted by Supreme Court in Indira Sawhney
that the appointment does not include promotion. Article 16(4A) thus revives the interpretation put on Article 16. Rule of
reservation can apply not only to initial recruitments but also to promotions. But no promotion can be made in promotion posts
for the OBCs.
The Supreme Court has emphasized that Article 16(4A) ought to be applied in such a manner that a balance is struck in the
matter of appointments by creating reasonable opportunities for the reserved classes as well as for the other members of the

society.
Article 16 (4-B): 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.
The Constitution (Eighty- First Amendment) Act, 2000 has added Article 16(4B) to the Constitution. The Amendment
envisages that the unfilled reserved vacancies are to be carried forward to the subsequent years and these vacancies are to be
treated as distinct and separate from the current vacancies during any year. The rule of 50% reservation laid down by the
Supreme Court is to be applied only to normal vacancies. This means that the unfilled reserved vacancies can be carried
forward from year to year without any limit, and are to be filled separately from the normal vacancies. This Amendment also
modifies the proposition laid down by the Supreme Court in Indira Sawhney.
Article 335: This article provides that the claims of the members of the SCs and STs shall be taken into consideration,
consistently with the maintenance of efficiency of administration in the making of appointments in services and posts in
connection with the affairs of the Union or of a State.
RESERVATION FOR BACKWARD CLASSES IN INDIA
ARTICLE 16(4):- This clause (4) expressly provides 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. Here the term
state denotes both Central and state governments and their instrumentalities.
The power conferred on the State can only be exercised in favour of a backward class and therefore, whether a particular class
of citizens is backward, is an objective factor to be determined by the state.
It was held in Triloki Nath v. State of J & K2, [1] that State determination must be justiciable and may be challenged
if it is based on irrelevant considerations.
In Mohan Kumar Singhania v. Union of India 3, [2] explaining the nature of Article 16(4) the Supreme Court has
stated that it is an enabling provision conferring a discretionary power on the state for making any provision or reservation of
any backward class of citizens which in the opinion of the state is not adequately represented in the service of the state. Article
16(4) neither imposes any constitutional duty nor confers any Fundamental Right on any one for claiming reservation. The
state government takes the total population of the backward class and their representation in the state services and after doing
the necessary exercise makes the reservation and provides the percentage of reservation for the posts, then the percentage has
to be followed strictly.
WHAT ARE BACKWARD CLASSESU/Art. 16(4) of The CONSTITUTION? There was an overwhelming majority in
the nation that was still backward socially, economically, educationally, and politically. These victims of entrenched
backwardness comprise the present scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC). Even
though, these classes are generically the "Backward Classes, the nature and magnitude of their backwardness are not the
same.The words ' "backward class of citizens" occurring in Article 16 (4) are neither defined nor explained in the Constitution
though the same words occurring in Article 15 (4) are followed by a qualifying phrase, "Socially and Educationally'' backward
2
3

AIR 1967 SC 1283


AIR 1992 SC 1

classes.
In the course of debate in the Parliament on the intendment of Article 16 (4), Dr. B.R. Ambedkar, expressed his views that
backward classes are which nothing else but a collection of certain castes.
Incidentally, it is also necessary to point out that the Supreme Court in all its decisions on reservation has interpreted
the expression `backward classes' in Article 16 (4) to mean the "socially and educationally" backward. It also emphatically
rejected "economic backwardness" as the only or the primary criterion for reservation under article 16 (4) and observed that
economic backwardness has to be on account of social and educational backwardness. The true meaning of this expression has
been considered in a number of cases by the Supreme Court starting from Balaji to Indira Sawhney.
(1) In M.R. Balaji v. State of Mysore 4, it was held that the caste of a group of persons cannot be the sole or even predominant
factor though it may be a relevant test for ascertaining whether a particular class is backward or not. The two tests should be
conjunctively applied in determining backward classes: one, they should be comparable to the Schedule Castes and Schedule
Tribes in the matter of their backwardness; and, two, they should satisfy the means test, that is to say, the test of economic
backwardness laid down by the State government in the context of the prevailing economic conditions. Poverty, caste,
occupation and habitation are the principal factors contributing to social backwardness.
(2) In R. Chitralekha and Anr. v. State of Mysore and Ors5. and Triloki Nath v. J & K State

and K.C. Vasanth Kumar v.

Karnataka The apex Court explaining the meaning of Class observed that The quintessence of the definition of Class is
that a group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual
(educational) development in the sense not having so much of intellect and ability will fall within the ambit of 'any backward
class of citizens' under Article 16 (4) of the Constitution.
(3) Further in R. Chitralekha v. State of Mysore, it was stated that:
...what we intend to emphasize is that under no circumstances a "class" can be equated to a "caste", though the caste of an
individual or a group of individual may be considered along with other relevant factors in putting him in a particular class.
(4) In State of Andhra Pradesh v. P. Sagar8, it has been observed that:The expression "class" means a homogeneous section
of the people grouped together because of certain likenesses or common traits and who are identifiable by some common
attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a
particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based
upon the caste or community cannot also be accepted.(5) In Triloki Nath v. J & K State 9 (II) [8] Shah, J., speaking for the
Constitution Bench has reiterated the meaning of the word 'class' as defined in the case of Sagar and added that "for the
purpose of Article 16 (4) in determining whether a section forms a class, a test solely based on caste, community, race, religion,
sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution.
The expression backward class is not used as synonymous with backward caste or backward community. The members of
an entire caste or community may in a social, economic and educational scale of values at a given time be backward and may
on that account be treated as a backward class, but that is not because they are members of a caste or community, but because
they form a class.
4

AIR 1960 SC 649

1964 (6) SCR 368

1969 (1) SCR 103)


7
1985 Supp. (1) SCR 352
8
1968 (3) SCR 595
9
1969 (1) SCR 103

(6) In A. Peeriakaruppan, etc. v. State of Tamil Nadu 10 [9] The Supreme Court observed that A caste has always been
recognised as a class. If the members of an entire caste or community at a given time are socially, economically and
educationally backward that caste on that account be treated as a backward class. This is not because they are members of that
caste or community but because they form a class.
(7) Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr.11 was of the view that In
ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens.
Caste cannot however be made the sole or dominant test...
(8) In Indira Sawhney and Ors. Vs. Union of India and Ors.12 , the Court observed that:

The meaning of the expression backward classes of citizens is not qualified or restricted by saying that it means those

other backward classes who are situated similarly to Scheduled Caste and/or Scheduled Tribes. Backwardness being a relative
term must in the context be judged by the general level of advancement of the entire population of the country or the State, as
the case may be.

There is adequate safeguard against misuse by the political executive of the power u/Art. 16(4) in the provision itself. Any

determination of backwardness is neither a subjective exercise nor a matter of subjective satisfaction. The exercise is an
objective one. Certain objective social and other criteria have to be satisfied before any group or class of citizens could be
treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it
would be a clear case of fraud on power.

Caste neither can be the sole criterion nor can it be equated with 'class' for the purpose of Article 16 (4) for ascertaining

the social and educational backwardness of any section or group of people so as to bring them within the wider connotation of
'backward class'. Nevertheless 'caste' in Hindu society becomes a dominant factor or primary criterion in determining the
backwardness of a class of citizens.

Unless 'caste' satisfies the primary test of social backwardness as well as the educational and economic backwardness

which are the established and accepted criteria to identify the 'backward class', a caste per se without satisfying the agreed
formulae generally cannot fall within the meaning of 'backward class of citizens' under Article 16 (4), save in given
exceptional circumstances such as the caste itself being identifiable with the traditional occupation of the lower strata indicating the social backwardness. And Class has occupation and Caste nexus; it is homogeneous and is determined by birth.
It further approved Chitralekha case.
PART III OF THE CONSTITUTION IN RELATION TO RESERVATION IN PUBLIC SERVICES
Article 14 is in general terms whereas Arts. 15 and 16 are of specific nature. Shortly put the combined effect of Arts. 14, 15
and 16 as far as public employment is concerned, is that they guarantee non-discriminatory treatment of citizens in matters
relating to public employment. Religion, race, caste, sex, descent, place of birth, residence or any of them cannot be the basis
for discrimination against a citizen in matters relating to public employment or office under the state. Reservation in favour of
backward classes of citizens is dealt with by cl. (4) of Art.16. It is an enabling provision and is in the nature of a provision or
an exception to cl. (1) of Article 16 of the Constitution?
WHETHER Art.16 (4) AN EXCEPTION TO Art.16 (1)?
10

1971 (2) SCR 430


1977 (1) SCR 194
12
1992 Supp (3) SCC 212
11

Although cl. (4) has an over-riding flavour as the opening words Nothing in the Article shall prevent the State from.,
suggest as Mudholkar, J. referring to these words in Devdasan pointed out: The over-riding effect of cl.(4) on cls. (1) and (2)
could only extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances.
That is all.
The view in T.Devadasan v. Union of India13, [13] that Art. 16(4) was an exception to Art. 16(1) received a severe
setback from the majority decision in State of Kerala v. N.M. Thomas14,[14] which held that 16(4) was not an exception to
Art.16(1) but that it was merely an emphatic way of stating a principle implicit in Art.16(1). The view taken in N.M Thomas
has been accepted as the correct one and by the majority in Indira Sawhney where the Court pointed out: Indeed, even
without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for
reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.
ARTICLE 16(4) AND ARTICLE 335
Article 335: provides that the claims of the members of the SCs and STs shall be taken into consideration, consistently with
the maintenance of efficiency of administration in the making of appointments in services and posts in connection with the
affairs of the Union or of a State.
There has been some debate as to whether Art.335 had any limiting effect on the power of reservation conferred by Art. 16 (4).
The nine judge bench of the Supreme Court in Indira Sawhney considered the argument that the mandate of Art.335
implied that reservation should be read subject to the qualification engrafted in Art.335 i.e. consistently with the maintenance
of efficiency of administration. Dealing with the argument majority framed an issue as to whether reservations were antimeritarian? The majority then observed that may be efficiency, competence and merit are not synonymous concepts; may be it
is wrong to treat merit as synonymous with efficiency in administration and that merit is but a component of the efficiency of
an administration.
Even so the relevance and significance of merit at the stage of initial recruitment cannot be ignored. It cannot also be ignored
that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much
cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also firmly believe that given an
opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with-and may in
some cases, excel members of open competitor candidates. It is undeniable that nature has endowed merit upon members of
backward classes as much as it has endowed upon members of other classes and what is required is an opportunity to prove it.
But in case of Article 16, Article 355 would be relevant. It may be permissible for the government to prescribe a reasonably
lower standard for scheduled castes/Scheduled tribes/backward classes consistent with the requirements of efficiency of
administration. It would not be permissible not to prescribe any such minimum standard at all. While prescribing the lower
minimum standard for reserved category, the nature and duties attached to the post and the interest of the general public should
also be kept in mind. While on Article 355, we are of the opinion that there are certain services and positions where merit alone
counts. In such situations, it may not be advisable to provide for reservations. For example technical post in Research and
Development organisations/departments/institutions, superspecialities in medicine, engineering etc.
CENT PERCENT RESERVATION NOT PERMISSIBLE:
No cent percent reservation
13
14

AIR 1964 SC 179


AIR 1976 SC 490

The state is not entitled to make a cent percent reservation. That would be violative of Art.16 of the Constitution. The Supreme
Court has ruled time and again, that where there is no only one post in the cadre, there can be no reservation for the backward
class with reference to that post either for recruitment at the initial stage or filling up a future vacancy in respect of that post
otherwise the same would amount to 100 per cent reservation. A single promotional post can also not be reserved.
Application of Rotational Rule In case of Post Graduate Institute of Medical Education & Research, Chandigarh 15 [15] it
has been categorically stated that unless there is plurality of posts in a cadre, the question of reservation will not arise because
any-attempt at reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to
create 100% reservation of such post whenever such reservation is to be implemented.
EXTENT OF RESERVATION

The extent of reservation should not exceed 50%


In Indira Sawhney case the majority pointed out that cl. (4) of Art. 16 spoke of adequate representation and not proportionate
representation-although the proportion of population of backward classes to the total population would a relevant factor. After
referring to the earlier decisions of the Court, the majority concluded that the reservation contemplated in cl. (4) of Art. 16
should not exceed 50%. It also pointed out that for the purpose of applying the rule of 50%, a year should be taken as the unit
and not the entire strength of the cadre.
CONCEPT OF CREAMY LAYER:
In the Mandal commission case, the Supreme Court has clearly and authoritatively laid down that the socially advanced
members of the backward class, the creamy layer, has to be excluded from the backward class and the benefit of reservation
under Article 16(4) can only be given to a class which remains after the exclusion of the creamy layer. This would more
appropriately serve the purpose and object of Article 16(4).
At present, the benefits of job reservations are most chewed up by the more effluent sections of the backward class and the
benefit of the reservation policy is not being percolated to the poor and the really backward class amongst them which makes
them poorer and more backward. So, the government must give effect to the observation made my Supreme Court in Mandal
case in order to achieve social and economic justice for the whole section of backward classes.
Conclusion The reservation policy in India in all sectors has become a disturbing and cyclical process. Initially with the
introduction of constitution it provided reservation for only SCs and STs but later on OBC were included and now the other
minorities are demanding reservation as well, which would ultimately lead to a situation where the seats left for the majority
would not be proportional with their population. This therefore, becomes an unending issue, rather than an equal opportunity
issue.
Its not that only developing or underdeveloped countries are facing sociological problems because these problems still persist
in the most developed nation in the world like that of USA. But in USA there is no reservation policy as such and there is an
affirmative action program for the minorities and especially for the African-Americans. India being a developing country is
slogging in almost all facets to achieve its 2020 mission but for that there is a serious need for reconsideration of the
reservation policy in India because the reservation policy compromises with the efficiency of a Country by not sincerely
recognizing the merits of backward classes which therefore hamper the development of a country. Thus reservation alone
cant be a solution and there must be a swift implementation of affirmative action programme in India especially when it
comes to reservation in employment.
15

1998 (4) SCC 1

Ashoka Kumar Thakur vs. Union of India[10] 1.The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the
"basic structure" of the Constitution so far as it relates to the state maintained institutions and aided educational institutions.
Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as
"private unaided" educational institutions are concerned, is left open to be decided in an appropriate case. 2." Creamy layer"
principle is one of the parameters to identify backward classes. Therefore, principally, the "Creamy layer" principle cannot be
applied to STs and SCs, as SCs and STs are separate classes by themselves. 3. Preferably there should be a review after ten
years to take note of the change of circumstances. 4. A mere graduation (not technical graduation) or professional deemed to be
educationally forward. 5. Principle of exclusion of Creamy layer applicable to OBC's. 6. The Central Government shall
examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes
(OBCs)to balance reservation with other societal interests and to maintain standards of excellence. This would ensure quality
and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from
general categories. 7. So far as determination of backward classes is concerned, a Notification should be issued by the Union
of India. This can be done only after exclusion of the creamy layer for which necessary data must be obtained by the Central
Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of
wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union
Territories. There has to be proper identification of Other Backward Classes (OBCs.). For identifying backward classes, the
Commission set up pursuant to the directions of this Court in Indra Sawhney 1 has to work more effectively and not merely
decide applications for inclusion or exclusion of castes. 8.The Parliament should fix a deadline by which time free and
compulsory education will have reached every child. This must be done within six months, as the right to free and compulsory
education is perhaps the most important of all the fundamental rights (Art.21 A). For without education, it becomes extremely
difficult to exercise other fundamental rights. 9.If material is shown to the Central Government that the Institution deserves to
be included in the Schedule (institutes which are excluded from reservations) of The Central Educational Institutions
(Reservation in Admission) Act, 2006 (No. 5 of 2007), the Central Government must take an appropriate decision on the basis
of materials placed and on examining the concerned issues as to whether Institution deserves to be included in the Schedule of
the said act as provided in Sec 4 of the said act. 10. Held that the determination of SEBCs is done not solely based on caste and
hence, the identification of SEBCs is not violative of Article 15(1) of the Constitution.
RESERVATION IN EDUCATIONAL INSTITUTIONS
WO

&CCEISK)#

........................................ AND JUIMCIAL PROCESS

The Indian constitution proclaqms India as sovereign, socialist,


secular, demcclratic republic ancl promises to all its citicens, justice,
liberty, equality and fraternity. The State created by the Constitution
is pledged t o politico-socio-economic equality of all citizens
irrespective of sex, wste and creed, committed t o social rekrrn, social
change and removal of discrimination between one citizen and another.
Every citizen irrespective of religion, caste, creed and sex, is therefore,
entitted t o education and employment according t o his capacity.
2
In an inequitable society, such as ours, some are always p r o d ded for and advanced, while some are deprived and trail behind. We
can overcome this by securing emancipation of the weaker sections.

10

Since independence there has been a special concern noton1y to


promote the interest d all the groups in the country, but also to
provide for protective status to certain groups o r people in the society
specially of the Scheduled Castes, Scheduled Tribes and the Backward
Classes. The founding fathers devoted various articles relatiog to
protective discrimination provision in the Constitution for the
levelling up of the lowly, the depressed and oppressed. Subsequently
Article 39-A 2 was introduced by amendment to achieve the same
object. The founding fathers also made provisions directing the State
*
1.
2.

M A. (Utkal), LL. M. (Alig) Reader, Post Graduate Department of Law,


.
Berhampur University, Berhampur (Orissa).
Articles : 15, 16, 17, 19, 23, 25, 29, 35, 38, 46, 164, 244, 320 (4) 330; 331,
332, 333, 334, 335, 339, 340, 341 & 342 of the Constitution of India.
Article 33A: Eqaaal justice and free legal aid: The State shall secure that
the operation of the legal system promotea justice on a basia of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation
or scheme or in any other way to ensure that opportunities for securing
justice are not denied to any citizen by reason or economic or other
disabilities.

11

52.

CENTRAL INDIA LAW QUARTERLY

[ Vol. 3:1

to undertake massive couipensa!ory measurzs to secure equality and


social justice to these people. a
3.
Following the spirit of the Constitution, the various Five Year
plans have initiated a number of policies and programmes for the
different groups of weaker sections. All the six Five year plans have
made special allocation for thB development of the weaker sections.
Starting with an allocation of Rs. 31.90 crores in the First Five Year
plan, the Sixth Five Year plan allocated a total of Rs. 96 .30 crores
for the welfare of the backward classes. A major share of allocati~n
(Rs. 506.50 crores in the Sixth Plan) has gone to education.
4.
The programme of equalisation received increased emphasis
since Fourth Five Year plan. The scheme of special sub-pl ln for the
Scheduled Castes and Scheduled Tribes was initiated in ths Fifth Five
Year Plan, The Sixth Five Year Plan paid special attention to v a r i ~ u s
groups of weaker sections. The scheme of Special Componer~tPlan for
the Scheduled Castes was started in this pldn. Some of the irnportaut
proglarnmes for the weaker szctions are :
(0
(ii)
(iii)
(iv)
(v)

(vi)

provision of schooling facilities within walking distance;


free education at the elementary level;
provision of ancilldr y services such as, equipment, uniform
and mid-day meals;
stipends and scholarships at secondary level;
post-matric scholarships and reservation and relaxation i n
marks in higher education i n the ceses of Sch:d:~led Ca\tes
and Scheduled Tribes;
and
institution of 4 scholarslips p3r block f ~ children liviag in
r
the rural arras.
.

5.
Of cour$e, there has been an improvement in the educational
field of the weaker sections,- partici~larly of Scheduled Castes,
Scheduled
Tribes, . and
Backward C l a ~ e s as
a result
3.

See Article 41 (Right to work, to education and to public assistance in certain


cases) and Article 4 6 (protection of educational and economic interest of
Scheduled Castes and Schebuled tribcs and other weaksr sections) of the
Constitution of India.

12

[ 1990 RESERVATION I N EDUCATIONAL INSTITUTIONS

53

of various spicial programmes. The literacy rate in case of Scheduled


Castes increased from 11.3 percent in 1961 to 14.7 per cent in 1971
and 21.4 per cent in 1951. Similarly the literacy rates of Scheduled
Tribfs improved from 8.3 per cent in 1961 t o 11.3 per cent in 1971 and
16.4 per cent in 1981.
6.
I n relative terms a l w there has been considerable improvement
in the educational situation of the Weaker Sections. For example, a t
the school level the co-cfficien! of equality for Scheduld Castes
improved from 75.5 in 1964-1975 to 89.0 in 1978-79. The increas: has
been marked to be more significant at tbe higher educational level,
from 37.4 in 1964-65 to 53 6 in 1978-9 in the case of general
education and from 2j.3 in 1964-65 to 51.8 in the case of proftssiooal
education.
7.
How;v:r the gap b-tween the Scheduled Castes and Scheduled Tribes and others continued to be wide. Various researches also
indicate that the gap amcing different groups of weaker sections is
widening. I t is further noticed that improvement in the educatianal
situation of weaker sections iq more in prestigio IS professional c o k ges, it is good in general arts and science colleges and is much less
than their representation in higher education in general. Even quantitatively the picture is not as goo1 as is given by official statistics as
there is higher dropout and stagnatijn rate amjng the weaker section
compared to general population.
8.
All theye call for a review of policies and programmes of reservation of seats fdr the weaker sections in educational institutians and
posts in public services. This brief paper attempts to make an a~:alytical study of the role of judiciary in respect of protective discrimination in education spcoially reservations of seats of certain groups
in educational institutions and po;ts i 1 public s:rvices and their impact on the socio~economic o n d i t i ~ n s the country.
c
of
9.
In addition to the socio-economic b~ckwardness,the uneven
development may a150 be on account of caste system prevailing in the
Indian society, specially the Hindu society. It becomes, therefore,
necesbary to lift the backward to the level of the fwward by devising
variws methods. One such devicc is to keep some seats in educational
institutions and some posts in public services reserved. The purpose
af reservation provision was to lift the backward classes-socially,
CENTRAL I N D I A LAW QUARTERLY
[ Vol 3 : 1
educationally and economically so as to bring them in to the mainstream of national life. It was said in the Constituent Assembly
that
Scheduled Castes, Scheduled Tribes and other backward classes,
owing to a n unfartunate legacy of the past, sufferred from disabilities
and handicaps. They had been neglected in the past and denied their
rights and lawful claims as a result of their general backwardness.
I t was, therefore, necessary to give special treatment t o them,
a t least, as a temporary measure, in matters in which their inequality and backwardness constituted a hinderance to the development
of the country. Our late Prime Miuistzr, Mrs. Indira Gandhi on 1st
April, 1981, while talking to the repxters of Malabar Press Club at
Kozhikole defindidg the reservation policy of Government said,
reservations are there because a large section of the population had
an unfair deal for centuries.
10.
In the Indian context the weaker sections comprise Scheduled
Castes, Scheduled Tribes, people living in rural areas, and people
living in backward and remote regions of the country. On these

the

13

criteria about 90% of the total population of India would fall


in the categories of weaker sections. Considering the availability of
resources it may not at all b.: possible l o extend financial or any other
sort of help to such a big part of the population. Hence, it would be
wise if the concept of weaker section is confined to Scheduled Castes,
Schedulej Trib-s a l ~ dBackward Classes only. As far as the definition
of Scheduled Castes and Scheduled Tribes is concerned there is n o
much di>pute but in respect of Backwarj Classes difficulties have
been faced in the past as well a s are being faced at present.
11.
Questions have often arisen whether any classes of persons i n
India, other that] the Scheduled Castes and Scheduled Tribes, can
be treated as socially a ~ l deducationally backward classes and whether
a list of such backward classes can be made and recommendation be
made for their adequate safeguards as provided t~nderthe Constitution
of India. At tne same time it has b x o m e the first and foremost point
to decide, as to who are backward cla~ses.
Dr. Ambedkar observed in the Constituent Assembly;
Somebody asked me, what is bdckweril community ?
4.
5.

The State! man, Calcutta, Friday, April 3, 1981 at p. 1.


Articles 341 and 312 of the Constitution of India.

14

1990 3 RESERVATION IN EDUCATIONAL INSTITUTIONS 55


Well, I think any one who reads the language of the draft
will find that we have left it to b: determined by each local
Government. A backward community is a community which
is backward in the opinion of the Government.
12.
Of course, the Constitution does not define backward class
as at the time of its making, not mucn information was available about
them. The Scheduled Castes and Scheduled Tribes are generally backward and the expression backward classes ordinarily refers to them.
13.
However, Article 340 of the Constitution provides for the
appointment of a Cornmission to investigate the condition of the backward classes. Such a Cornmisson was appointed in 1952 with Kaka
Sahcb Kalelkar as Chairman to deal with the following :(9
(ii)
(iii)

To determine the tests by which particular class or group


of people can be called &backward;
To prepare a list of such backward communities for the
whole of India;
T, examine the difficulties of backward classes and to
recommend steps to be taken for their amelioratioo.

14.
The committee submitted its report to Government in the year
1956, but the Commissions recommendations were held to be vague
and wide and hence, the State Governments were authorised to give
assistance to the backward classes in terms of the list prepared by the
State Governments themselves.
15.
Though the Constitution has accepted the concept of equality
as the foundation for social justice yet it is not absolute in terms and
is circumscribed by limitations. In a sxiety where different sections of
people are dissimilarly placed, they cannot be made equal by merely
treating them as equal. In such circumstances the principle of equality
is to be construed with reference to reasonable classification. It was
the intention of the framers of the Constitution to do away with caste
system, b u t 3 was soon realised that when on account of historical,
geographical and economical reasons the backward classes and advanced classes are allowed to compete without adequate safeguards for
the former. the result would be that the existing gap between them
would further widen.
6.
CAD Vol. VII, p. 702.
56
CENTRAL INDIA LAW QUARTERLY
3 : 1

[ Vol

16.
If one tries t o understand the phrase backward classes he
comes accross the word caste or c, mmunity. I n India the caste
system and its subdivision, is only in H~rldusociety. The word caste
has been used in Article IS, 16 and 29 ofthe Constitutioi~of India, but
the same has not deen defined ally where in the Constitulioil. The task
is an extremely difficult one. M m y communities desire that they should be characterised as backward, because they can enjoy social protection; avail of the spicial privileges extended t o the backward
classes and hence they exert political ir~fluence
on the Government
for being remg lised as *backward. As soon as a class is designated as backward, even rich, well placed and well educated members
of that class claim tiles:: privileges in reality aud the actually backward
people of tt e class gtrt excluded. This is against the interest of the
really backward p e r s m a n d frustrates the basic objective of the
Constitution. It is also cmsistennt with this principle that those who
are advanced. even if they nominally belong t o the backward groups,
should get no share i n the reserved seats and jobs.

15

17.
r

There are of course types and degree of backwardness. Some

are backwwd only economically wlile others are backward educationally as well as socially Although economic backwardness is at the
root of social and educational backwardness. Jn this country the
peculiar caste system has added a new dimension t o the problem. On
account of the caste taboo, educational and social advancement was
denieJ even to the eco~omicatly sound* The scheduled caste and
scheduled tribes are therefore backward in all respects. Among the
backward, further, the levels. of backwardness vary. Even among the
Scheduled Castes and Scheduled Tribes, some ale more backward
than others. Hence, it stands to reason that those who are backward
i n all rzspects such as the Scheduled Castes and Scheduled Tribes
sllould get preference over others and those among the Scheduled
Castes and Tribzs who are more bdckwed should get priority over
those who are less b ~ c k w a r d .
18
The paition of l d w as crystalired for dztermioation of .backward cldsses is as under :
0)

The bracketting of socidlly and educationally backward


classes with the Scheduled Castes and Scheduled Tribes in
Article 15 (4) and the provision in Article 338 (3) that the

7.
See Jairl, M. P., Indian Coustitutional Law (3rd Ed., p. 61 k)
RESERVATION IN EDUCATIONAL INSTITUTlONS 57

(iii)
(iv)

(vii)

(viii)

reference to Scheduled Castes and Tribes Were to be construed as including such backward classes as the President
may by order specify on receipt of the report of the Commission appointed under Article 340 (I), showed that in the
matter of their backwardness they were comparaMe to Scheduled Casttes and Tribes.
The concept of backward classes is not relative in the sense
t h a t any class which was backward in relation to the most
advanced &ass i n the community must be included in it.
The backwardness must be both social and educational and
not either social or educational.
Article 15 (4) refers to backward classes and not backward
castes, indeed the test of caste would break down as regards
several cornmumities which have no caste.
Caste is a relevant factor in determining social backwardness
but is not the sole dominant test.
Social backwardness is in the ultimate analysis the result
of poverty to a large extent. Social backwardness which
results from poverty is likely to be aggravated by considetation of caste to which the poor citizens belong, but that
only shows the relevaace of both caste and poverty in
determining the backwardness of citizens.
A classification based only on caste without regard to the
other relevant factors is not permissible under article lS(4);
some castes are, however, as a whole socially and educationally backward.
The occupdtion f>llowed by certain classes (which are
looked upon as inferior) may contribute to social backwardness and so may the habitation of people for in a
sense, the problem of social backwardness is the problem of
rural India.
The division of backward classes into backward classes is
in substance a division of the population into the most
advanced and the rest, the rest being divided into backward
and most backward classes and this is not warranted by

16

58

article 15 (4).
The objrct of reservation would be defeated if a backward
is treated as backward for all times to come.
CENTRAL INDIA LAW QUARTERLY

(xi)
(xii)
(a)
(b)

(c)

(d)

(e)
-3.
1.
0
I.
2

[Vol. 3:l

The aggregate reservation (including backward classes)


should in no case exceed 50%
.
The Courts jurisdiction is limited in deciding whether the
tests applied by thc State in deterrninir~g the backward
. classes of citizens are valid or not. 8
Socially and educationally backward classes of citizens in
article 15 (4) cannot be equated with castes. 9
The object of the reservation under article 15 (4) is to
recopise the factual existent: ofsocially and educationally
backward classes in India and to make a sincere attempt to
promote the welfare of the weaker sections of the community. Artiele 15 (4) gives effect to this principle. The concept of backwardness in Article 13 (4) is not intended to
be relative in the sense that classes who are backward in
relation to the most advanced classes of aociety should be
ixluded in it. 10
The important factor to be noticed in article 15 (4) is that it
does not speak of castes but only speaks of classes. If the
makers of the Constitution intend to take castes also as
units of social and educational backwardness, they would
have said so as they have said in the case of Scheduled
Castes and Scheduled Tribes. The juxtaposition of the
expression backward classes and Scheduled Castes in
Article 15 (4) also leads to a reasonable inference that
the expression Class is not synonymous with castes.
The criterion for determining the backwardness must not
be based solely on religion, race. caste, sex or place of
birth and the backwardness being social and educational
must be similar to the backwardness from which the scheduled castes and scheduled tribes suffer. l2
The classification of backward classes on the basis of castes
-

Chahatlal v. State, AIR 1979 Alld. 135


Jaishree v. State of Kerala, AIR, 1978, SC. 2381.
Ibid
Chitralekha v. State ~f Mysore. AII, 1964 S2 182 1; Triloknath v. State
of J & K AIR 1967, SC 1283.
State of Andhra Pradesh v. P Sagar, A. I. R. 1958, SC 1319
.

17

19901 RESERVATION I N EDUCATIONAL INSTITUTIONS 39


is within the perview of Article 15 (4) if those castes are
st own to be socially and educationally backward. la
(f)
)

Basically and essentially even social and educational backwardness is the result of economlc backwardness.
It is doubtful if the test of averagz student population in the
last three high school classes is appropriate in determining
the educatiorlal backwardness and that it may not be necessary or proper to put the test as high The Court does not
propose to lay down any hard and fast rule as it is for
the State to consider the matter and decide it in a manner
which is consistent with the requirements of Article
1 5 (4).
l6

18.
The discriminatory attitude is necessary to be adopted to make
the objective of fraternity feasible. Article 15 and 16 bear ample
testimony to the awareness of the framers of the Constitution
10 the need of discriminatory meawres. for the protection of
the backward classes and weakar sections. Article 15 while prohibiting
discrimination on grounds of religion, race, caste, sex or place of
birth in clauses ji) and (2) there of makes exception in clauses 3 and
4 there of empowering the State to make special provisions for women
and children and for socially and educationally backward classes and
the Scheduled Castes and Scheduled T~ibes respectively. Similarly
while clause 1 a:ld 2 of Article 16 enjoin equality of opportunity to be
offered to all citizens in matters of employment or appointment to
any office under the State irrespective of religion, race, caste, sex, descent, place of birth or residence, clauses 3, 4 and 5 thereof make exceptions to this rule: clause (4) thereof provides for the State to make
reservations for backward classes not adequately represented in the
services under thc State.
19.

Besides eJuc~tiona1and c ~ l t u r d
rights of the mioorities stand
protected by appropriate provision gudranling their right to establish
and manage institutions for the pxrposes free from interference by the
13.

A. Perikaruppan v. State of Tamilnadu, AIR 1971 SC 2303; Rajendran


v. State of Madras. AIR 1968 SC 1012.
Padmaraj Sarnarendra v. State, AIR 1979 pat. 266

14.
15,
60

State of Andhra Pradesh V. USV Balaram AIR 1972, SC. 1375


CENTRAL INDIA LAW QUARTERLY

[ Vol. 3:l

State. 16 Provision was made in the Constitution itself for reservation


of seats in Parliament and in the Ass5mbly for the Scheduled Castes
and Scheduled Tribzs. l7 The concept of protective discrimination is
therefore a basic concept with our constitution essential for securing
Justice liberty and equality to all her citizens, for the ultimate
objective of promoting Fraternity and of bullding up unity and
integrity of the Nation.
20.
The American society comprises the whites and the
Blacks have been faced with thz similar problems. Working on the
principle of equality before law, in the year 1954, the U. S. Supreme
Court in the case of Brown v. Education la declared segregation to be
unlawful. It was followed by statute prohibiting all forms of racial
discrimination. But this still left the black citizens economically disadvantaged and without the same opportunities of access to higher

18

education and the professions or even skilled jobs as the White


Americans. To ensure that there is equality not merely in theory
b j ~ t fact, the State presently pursues the policy of affirmativeaction
in
for giving opportunities to the s 7cially and educational backward
citizens in highar educatios and in professions, affirmative action is
worked out by reserving a definite quota for the Blacks in educational
institution and in professional shperes. It is not humanitarianism but
realisation that unless in the case of the undsr dev4oped citizens, the
disadvantages of the past are offset by the positive measures, quest for
fraternity b:twean the unequals would remain a mirage which would
ultimately endanger the solidarity and security of the Nation.
21.
Let me next cmsider the judicid interpretations in respect of
reservatio~l~ seats in educational irlstitutions fdr the Scheduled
of
Castes Scheduled Tribes and the Back*ard classes.
22. . Immediately after the passing of the Constitution, the then
Mldras Gwernin:nt isssed an executivz mandate making reservation
of seats in colleges and public services for backward class$s. The
Government orders were challanged in Champakam Dorairajan v. State
of Mahas. Ie Th: Coilrt struck down these orders saying that the
16.
17.
18.

Articles 29 and 30,of the Constitution of India


Articles 30 & 31 of the Constitution of India
347 U. S $33 (195t). SCC also P. K.Triplthi S o n e insights into Fundamental
.
Rights University of Bombly (1972) p. 178.
19.
A 1. K. 1951, SC. 226
I990 ] RESERVATION IN EDUCATIONAL INSTITUTIONS 61
reservation on the sole consideration cf caste violated the Constitution.
It is only after this, that Articles 15 and 16 of the Constitution were
amended by insertion of subclause (4) enabling Government to make
special provisions for the advancement of any socially and educationally backward classes of citizens incl~diogSchzduled Castes and Scheduled Tribes 2e
23.

The G~vernmrnt Mysore pacsed an order reserving seats in


of
Engineering and Medical Col\tges for certain castes by classifying them
as backward. This order was struck down by the High Court 21
on the following grounds :(0

The Court emphasized that Article 15 (4) envisages backwardness which is both social and educational and not
either. Therefore though caste may be a relevant factor it
cannot be the sole dominant test, to consider backwardness.
Poverty, occupation, place of birth, place of habitation all
contribute to bdckwardness and such factors cannot be ignored. If crassi6cation for social backwardness were to be
based solely on caste, then the caste system would perpetuate in Indian society. Also such test breaks down in
relation to these sections of the $ociety which do not recognise caste in the conventional sense as kt~own to the Hindu
society. The defect in the Mysore Government order was
that it was based soltly on caste without regard t o other
relevant factors and this wds not permissible under Article
15 (4). *1A

(ii)

The test adoptcd by the State to measure educational backwardness was the basis of the average of students popul-

19

ation in the last three high school classes of all high schools in the State in relation to a thousand citizens of that
community. The average for the whole state was 6.9 per
thousand. The Court held that assuming that the test applied was rational and permissible to assess educational
backwardness, it was n3t validly applied. Only a community clearly b:low the State-average could properly be
regarded as backward and not a community which comes
20,
21.
21.

lbid p. 229
Balajiv,
State of Mysore,
A. I. R. 1963, SC 649
A. Jaio M. P. InJian CLnjtitutional Law, 3rd cdn. p. 341
CENTRAI INDIA LAW QUARTERLY
[ Vot 3 : 1
near the average. The vice of Mysore order was that it
included in the list of backward classes, castes or communities whose average was slightly above, or a t par, or just
below the State average, e. g. Lirlgayats with an average
of 7.1 per cent had also been in the list of backward
communities. 22
The Court declared that Article 15 (4) did not envisage
classification between back ward and more back ward
classes as was made by the Mysore order. Article 15 (4)
ar~thorised making of special provisions for really
backward classes and not for such c l a s w as were less
advarwed than the most advanced c l a w s of the State. By
adopting the technique of classifiying the communities into
backnard and more backward cla~ses, 90% of the total
State popu)ation had been treated as backward. The order
in eflect sought to divide the State population into the
most advanced and the rest, and this was not envisaged
by_Article 15 (4).

21.
I n Chitralekha v. State of Mysore 2 Mr. dustice Subba R a o
(as he then was) reiterated the position tha? the classes contemplated
i Article 15 werenot castes. His Lordship pointed out that the juxtn
aposition of the expression backward classes aod *Scheduled
Castes. in Article 15 (4) also leads reasonably, to the inference that
the expression classes was not synonymous with caste and
observed :
If we interpret the expression classes as castes
the
object of the Constitution will be frustrated and the people
who do not deserve the adventious aid may get it to the
exclusion of those who oeally deserve. This anomaly will
not arise without equating caste with class. Caste is taken
as only one of the considerations to ascertain whether a
person belongs t o a backward class or not. On the other
hand, if the entire sub-caste by and large, is backward it
22.

Ibid.

23-

Ibid.

24.

A. I,

R. 1964 SC 1823.

20

1990 ] RESERVATION IN EDUCATIONAL INS IITUTIONS

63

may be included in the Scheduled Castes by followirlg


appropriate procedure laid down by the Constitution. 26
25.
In Sta:e of Andhra Pradesh v. Sngar. 26 the Supreme Court
took another step further in the direction of discouraging classification
on the basis of castes. In this case the Supreme Court held that since
Ariicle 15 (4) was by way of exception to the Fundamental Rights in
Article 15 ( I ) , once it was shown that, prima facie, a classification
infr.inged the right in clause ( 1 1, th: burden was on the Government to
show that it was protected by the excepti~nin Article 15 (4). Further,
the Court held that a classification based on caste, as the one involved
n the case in hand, did, prima facie, violate the rights in clause (I).
r h e Governments case was that its expert officials, and a Subcommi.ee of the cabinet had satisfied themselves that the classification was
lased on proper criteria and not solely on caste, and the court should
ccept their findings. Sp2aking through Mr. Justice Shah (as he then
vas) the court rejected this contention, and held that the issue was
ustlciablc, and the High Court below was right in insisting that the
lnaterials on the basis of which the officidls and the cabinet sub.comm:tee had determined backwardness and prepared the list, must be
laced brfore the Court to decide whether the Constitutional require
lent has been satisfied. And since this had not been done, it was held
]at classification made by the government on the basis of caste was
ghtly invalidated by the High Court.
I
The policy of protective discrimination in education, specially
servation for certain groups in educational institutions calls for an
Gective review of policies towards the weaker sections so that some
tter strategies could be evolved.
.
The practice of naming castes as backward classes9 without
nsideration is purely irrational aild such classification has the
lowing defects :
i)
ii)

It has tendency to perpetuate the caste system and thus


hamper the real growth of an egalitarian society;
If within a backward class no real classification be made
then all the privileges reserved for the clasi may be utilised
Ibid, 1834. See also M L. Upadhyaya, Legal Aspects of Equslity of Educa.
d,a (1974) J B C 1 113.

21

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CENTRAL INDIA LAW QUARTERLY

Vo1.3:I

by the well to do of them leaving the poor as neglected as


ever.
28.
From the above it is imperative that the castes as such should
not be recognised for the pilrpose of piviqg assistance. The jiidicial
pronouncements have also had their impact in the matter of giving
assistance on the ground of ( c ,nornic back~ardness.1 K.S. Jayshree
I1
v. State of Kerala. 27 the Sl~preme Court has upheld a Government
order lbting Backward Classes excluding such familics as have an
aggregate annual income of Rs. 10.000 t,r a h v e . The order was challanged by the candidate b longing to the backward classes who had
been denied the privilege of preferential admiscioii to a medical college
because her famiiy income exceeded Rs. 10,000 annually. In an opinion
Ray, C. J. (as he then was) held that neither caste nor poverty could
be the sole determining factor of social backwardness. However, he
upheld the impugned order of September 2, 1975, which classified
familics from the backward classes with all annuel income of less than
Rs. 10,000 or more into a sub-class and denied protective discrimination to them.For example an Ezhava with an annual income of less than
Rs. 10,000 was entitled to protective discrimination while thile this
profection was denied to another Ezhava with higher annual income.
Hence, it is clear that the Court emphasised that poverty or economic
standard is a relevant factor in determining backwardness.
29.
In Usharani v. Maharshi Dayanand University. the Punjab
and Haryana High Court upheld a reduction in tl:e reservation of
backward classes from 10% lo 2% and held that article 15 14) did not
confer any right on a citizen but was merely an enabling provision.
The same High Court in another case held that where total reservation went upto 74% it was excessive and arbitrary and violative of
article 14. The Karnataka High Court in Syed Noor Fatimah v. Selecction Committee for Admission to I Year MRBS Course and etc. O observed that an authority selecting for admission had a duty to independently scrutinise the certificate brought by the students regarding their
being of the backward class, particularly where it was an admission
for a reserved seat.
30.
27.
28.
29.
30.
31.

I n K. C. Vasanth Kumar v. Klrnataka


the Supreme Court
A. I R. 1976 SC 2381
.
A. I. R. 1984 P&H, 297.
Shasi Prava v. Punjab University,
AIR 1984, P& H 434
A. I . R . 1984 NOC, (Kant) t31.
A. I. R. 1985 sc 1495 131.

22

19901 RESERVATION IN EDUCATONAL INSTITIUTIONS 65


dealt with the subject of protective discremination in a comprehensive manner. Chandrachud the then C. J.laid down the following policy propositions :(9

The reservation in favour of the Scheduled Castes and


Scheduled Tribes must contirlue as at present, that is,
without the applicatiorl of a means test, for a further period
not exceeding fifteen years. Another fifteen, years will
make it fifty years after the advent of the Constitution, a
period reasonably long for the upper crust of the oppressed
cldss to overcome the baneful effects of social oppressi3n,
isolation and humiliation;

(ii)

The means test, that is to say, the test of economic backwardness ought to be made applicable even to the SCs and
STs after the. period mentioned in (i) above;

(i i i)

So far as the other backward classes were concerned, they


should satisfy two tests, namely; (a) that they should be
comparable to the SCs and STs in the matter of their backwardncss and (b) that they should satisfy the means test
such as a State Government may lay down in the context
of the prevailing economic conditions;

(iv)

Tne policy of reservations in employment, education and


legislative institutions should be reviewed every five years or
so. That will at once afford an opportunity to the
state to rectify distortions arisieg out of particular facets
of the reservation policy and to the people, bqth backward
and nonback~ard, to veutilate their views in a public
debate on the practical impact of the policy of reservation.

3 1.
D. A. Desai strongly advocated the application of economic
critezion for identifying the socially And educationally backward
classes. The judge noted with concern how the use of caste as a criterion of backwardness had created vested interests in remaining or being
identifed as backward. It had led to perpetuation of the caste system.
I n the case of SCs and STs the judge conceded that caste as a criterion could not bc excluded. But even in that respect the economic
criterion was worth applying by refusing preferred treatment to those
who hsd already benefite~by it a rd had improved their position.
66
CENTRAL INDIA LAW QUARTERLY
[ Vol 3 :1
32.
0. Chinnappa Reddy J did not agree with the suggestion that
the backward classes should be comparable to the SCs and STs. The
Judge observed that only the enlightened classes would capture all
the #open9posts and seats, and reserved posts and seats would go to
the SCs and STs and those very near to SCs and STs. The bulk of
those behind the enlightened classes and ahead of the SCs and STs
would be left high and dry. The judge rightly pointed out that in
adopting individual poverty as the criterion to identify a member of
the backward class, there was a danger of many psuedo-poor masquerading as poor on the strength of false income certificates. 2 He was
obviously not in favour of usiog economic criterion alone for identifying the backward classes. He said :4rPovertyof cohse, is basic being the root cause as well as
the rudful resblt of social and educational backwardness.
But mere poverty it seems is not enough to invite a Constitutional branding, because the vast majority of the
people of our count@ are poverty-stiuck but some of them

23

are Socially ahd ed8catibnally forward and others backward. *


33.
The Judge poiitid 6t that Brahmins could not be described
as socially and educationally backward even though there might be
poor peo?le among them. Similarly, no one could possibly claid (hat
the Patels qf dujrat, the Hayashras bf Bengal, the keildy and Kamas
of Andhra ~ r a d e s h
were socidly and educatio;&lly backward classes
dkspite thk fict that the majority of them may be poor farmers and
agricultural 1abou;krs.
Re furfhei sdd :~ l a k pdverty not individual poverty, is tbeiefore, the
primary test. Other ancillary tests are the way of life, the
st?ndard of living, the place in the social lii)iarchy, the
habit and customs etc. etc-a---* Notwithstanding our
antipathy to caste and sub-regionalisn, these are ficts of
d
.
. lift: which :annot be wished away. S5
I .
1

32.

1985 ~ n n u a lSurvey of Indian Law (ILI), p. 220

33.
34.
35.

Supra note 30 p. 15 29
lbid.
lbid.

24

1990 ] RESERVATION IN EDUCATIONAL INSTITUTIONS 67


34.
A. P. Sen J. also agreed with Reddy J in the view that economic
backwardness could only be one of the tests of backwardness. According to him, the eipression backward classes should be used as
synonymous with the weaker section of society. The predominant and
theronly facto; for making qxciA provision udder article 12 (4) 0p
for the resetvation of posts Cnd appointments uncles article 16 (4)
should be poverty and caste or sub-caste or a group should be used
only for the pul pose of identification of persons comparable to the
SCs and S Ts. The jl;dge admitted that the court was ill suited to identify or lay down te& for identifyingwho were backward. HOsug~ested
that a permanent Notional ~arnmission
for backward classes which
would. constantly carry out sociological and economic studies from
State to State and from region to region be set up. ss
35.
Venkataramiah J. emphasised that the rule that more than 50%
of the total number or seats or posts could not be reserved had pot
been overruled by the court and was still the law. The judge pointed
out that various ameliorative measures such as liberal grants of scholarships, free studentships, free boarding and lodging facilities would
go a long way towards mitigating the disadvantage qf backwardness.
The judge held that two tests should be applied for determiqation of
backwardness ;
.
(9

(ii)

the conditions of the caste or group or community should


be more or less similar to the candidates in which the SCa
and STs were situated; and
the income of the family to which the candidates belonged
should not exceed the specified Sirnit. These t y o would be
relevant for article 15 (4). For Article 16 f4), in addition,
it would be necessary to see whether the caste or group was
represented adequately in the services.

Conclusion :
36.
To determine backwardness, economic consideration is an
essential consider&on. When improvement is noticed in the economic
position, such family should not be given advantages or the privileges
3.
6
37.
68

Ibfd.
Supra note 30.
CENTRAL INDIA L A W QUARTERLY

[ Vol 3 : 1

meant fur backward persons, 0therwis.j it will be deprivation to the


real backward poor persons of their chance to make progress.
37.
If we attempt a review of various programmes for the weaker
sections, specially of the Scheduled Castes, Scheduled Tribes and
backward classes in respect of their education, we will find that most
of these relate to higher education. V e ~ ylittle has been done regarding
their edricatim at the SCIOO~ level. At school level education is free
and there ate. provisions for the free suoply of uniform, b?oks,
equipments and midday meal. Inspite of these facilities it is found .
that, a large proportion-of the111 dropout even before complelion of
the primary and Ibwer secondary stages. The neason for this is that
the weaker sections who are poor and whose children when they
are 7 6~ ,8 years old start working for mereq subsistence. In most of
the cases it has been found that the dropout is not of economjcajly
weaker students but economically po3rer ones.
,

25

38. If it is desired to bring tlte children of the weaker section to


the school and retain them for continuation of their studies then it
would bt becessary not only to provide free education but also to
cover the actual cost of education. For this more money needs to be
spent in the forthcoming Five Year Plans.
39.
There are some administrative lacunae also. In some cases
illcentives are provided, but the same are not worked out in time and
as such things are delayed and ultimately it defeats the very purpose of
the scheme. For ensuring maximum benefit of the scheme there should
be a system of continuous follow up of the schemes. Hence, the forthcoming Five Year *Plan Should make provision of money for this
purpme.
I
.

4.
0
It is indisputable that lot of schemes and programmes for the
weaker sections have been introduced, such as, stipends, scholarships,
some ancillary services, hostel facilities etc. All these aim at e n ~ o l l i ~ g
more and more children of weaker sections in the schools, but very
little is done to see that thelcbildren of weaker sections continue in
ancEcan iyprove their performances. Government is concerned
for theif quantitalive improvement rather than qualitative, and this
has further led to the high rate of dropouts. Hence, in the fortl;coming
Five Year plan, it is necessary to consider the programmes of qualita:
tiva impovzment ald far this some resources need to be earmarked

26

1990 ] RESERVATION 1N EDUCATIONAL INSTITUTIONS 69


exclusively. A programme of raising the qualitative level of the weaker
section, which has been discussed earlier, is to identify at least 1,000
meritorious students from the deprived at the end of lower secondary
level from different States, give them good vocational guidance and
place them in good institutions according to their aptitude. These
students may also be given fipancial assistance fon meeting the expenses
by which they can.cover the entire cost of education including the
private cost of education. A continuous monitoring o f , their progress
and remedial teaching whenever found necessary is also suggested.
41.
Another issue which needs to be considered in the forthcoming
Five Year, Plan in respect of education to the weakef sections is the
question of fixiog priorities among the weaker sections themselves.
The policy on reservation is being enjoyed by the people belonging to
Scheduled Castes, Scheduled Tribes and Backward Classes sioce the
cdmmencement of the Constitution. After more than two decades of
the operation of these provisions, it reveals that the urban population
belonging t o the above castes are the maximum beneficiaries and their
couriterpart in the rural areas have been neglected. In other words i t can be said that the real depressed, oppressed and the needy do not
get the benefit. Only the well off among those classes have been enjoying the privileges meant for the whole community. It is not what the
foupding fdthzrs of O M Constitation had th.~ught
of. They had intended that the C J icejsion shoulil be extended to those unprivileged
cldsses who are in real need of such special treatment.

27