I INTRODUCTION NTRODUCTION

The caste based reservations was opted as a substitute for the system of separate
electorate announced by the then British PM Ramsay McDonald in August 19!" This
award is #nown as the $%ommunal Award& proposed separate electorate for the depressed
classes for the first time" 't was a move to further divide 'ndian society and rule over
them" The whole nation opposed this under the guidance of (andhi)i who went on fast
unto death opposing this proposal and thus reservation of seats was accepted as a lesser
evil" *owever it has turned out to be a bigger evil"
Today we are at the dawn of the +9
th
year of our 'ndependence" 'n less than si, decades
the socio-economic map of 'ndia has changed beyond recognition" .e made reservations
for certain communities of bac#ward classes on the assumption that the socially
bac#ward classes are economically bac#ward/ too" All through these +9 years the
politicians at the state and central level are vying with one another to brac#et more
communities and castes under 01ther Bac#ward %lasses2 not with the holy purpose of
raising the living standard of the concerned classes but to ensure assured vote ban#s"
.e saw the release of 3alel#ar report / more importantly the recommendations of the
Mandal %ommission and now the proposal of the 4PA government through Mr"Ar)un
5ingh referred to as the $Mandal ''&" All the raucous protests and political twists did not
improve the situation" 6urther/ the regional governments have introduced more
reservations within their respective states especially in the southern states of Tamil 7adu
and 3erala" *owever/ till this day no governments either at the centre or the states has
made any appraisal of the reservations made in the last +9 years"
The worst sufferers have been the poor belonging to the unreserved classes and instead
bear the $stigma& of belonging t
Launch Internet Explorer Browser.lnk
o $forward castes&"The
cries of those who called for reservation on the economic basis fell on deaf ears" The
1
vested interests prevented political parties at the helm of affairs from attempting a re-
e,amination of the entire reservation policy" .ho on earth would dare to antagoni8e their
poc#et boroughs 9 the fi,ed vote ban#s:
This debate is multi-dimensional and its ;ualitative aspects range from constructive to
ludicrous to sinister" .hich of these aspects would ultimately assert itself and emerge on
top doesn&t evo#e a definite reply"
!
R RESERVATION ESERVATION IN IN E EDUCATIONAL DUCATIONAL I INSTITUTIONS NSTITUTIONS
<Today/ we have performed the ritualistic immersion =visarjan> of a historic document"<
This was one of the first comments of B"P" Mandal/ the architect of the Mandal
%ommission Report/ after he and other members of the %ommission submitted the epoch-
ma#ing report to 4nion *ome Minister (iani ?ail 5ingh" That was in December 19@A/
and MandalBs choice of metaphor must have sounded incongruous at that moment" But
the manner in which the recommendations have been treated has indeed imparted a
prophetic value to it" The report and its recommendations have gone through a cycle of
sorts/ characterised by long periods of government apathy and episodic revivals
accompanied by raucous protests and political twists"
The Mandal %ommission report remained forgotten for 1A years/ until the 7ational 6ront
government under the leadership of Cishwanath Pratap 5ingh implemented a portion of it
in 199A" The political demonstrations that followed that action were so strident and
dramatic that they altered radically the style and content of political discourse in the
country" The criticism was sharp and colleges across the country held massive protests
against it" 5oon after/ Ra)iv (oswami/ student of Delhi 4niversity/ self-immolated
himself in protest of the governmentBs actions" *is act further spar#ed a series of self-
immolations by other college students and led to a formidable movement against )ob
reservations for Bac#ward %astes in 'ndia"
1
HOW THE SUPREME COURT CAME TO ACCEPT ALL THIS?
'n the case of State of Madras v" Smt. Champakam Dorairajan
!
/ under the %ommunal
(overnment 1rder of the Madras (overnment allotting seats in 5tate Medical %olleges/ a
girl was denied admission solely on the basis of her not belonging to the castes which
were given reservations" The 5upreme %ourt struc# down the 1rder on the basis that it
violated Article 1+=1> and Article !9=!>" 't held that the fundamental rights are sacrosanct
and not liable to be abridged by any legislative or e,ecutive act or order/ e,cept to the
1
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March/ !AAH
!
A'R 19+1 5% !!F

e,tent provided in the appropriate Article in Part '''" Then in the case of
B.Venkataramana v" State of Madras
3
/ the petitioner had not secured the appointment as a
District Munsif solely because of the fact that he was a Brahmin" 4nder the old
%ommunal 1rder/ the Madras (overnment had reserved positions for a series of
%ommunities- *ari)ans/ Muslims/ %hristians/ Bac#ward *indus/ 7on-Brahmin *indus
and Brahmins" 'n this case as well/ the appellant could have got the position but for the
fact that he was a Brahmin" The %ourt held that as far as the number of seats that had
been reserved for *ari)ans and Bac#ward *indus was concerned/ 7o relief could be
given" Article 1F =G> enables the 5tate to reserve seats for these categories/ 'f all the
vacancies get filled up by these categories/ it must be deemed that the appellant had not
been able to get in not because he is a Brahmin/ or because he is of a particular religion/
caste or race/ but because of the necessity of ma#ing reservations for bac#ward classes/ as
permitted by Article 1F =G>" *owever/ the reservations that had been made for the other
categories were manifestly not for the 0Bac#ward %lasses2 permitted by Article 1F =G>
and therefore/ the e,clusion of the appellant on account of seats having been filled up by
candidates from these other categories was clearly the result only of his being a Brahmin"
Therefore/ to the e,tent that those reservations bloc#ed the appellant out of the category
of seats/ the instructions were unconstitutional" Thus/ %hampa#am Doraira)an&s case
triggered the move to add a new clause to Article 1+ in the form of Article 1+ =G>"
(4) Nothing in this artice or in ca!se (") or artice 29 sha prevent the State
from making an# specia provision for the advancement of an# socia# and
ed!cationa# $ack%ard casses of citi&ens or for the Sched!ed Castes and the
Sched!ed 'ri$es.
7ow there was an ambiguity" The list that had been used in the %ommunal 1rder by the
Madras (overnment was based entirely on caste" The %ourt had not struc# down these
lists" 'n its refusal to stri#e down the list that was patently nothing but a list of castes/ the
5upreme %ourt held thatD 0The entire caste is socially and educationally bac#ward and
therefore/ their inclusion in the list of bac#ward classes is warranted by Article 1+ =G>"

A'R 19+1 5% !!9

G
4nder the %onstitution/ no one can be discriminated against only on the basis of caste" 'n
the case of Minor (. )ajendran v" State of Madras
G
* it was held thatD 0't is true that the
present cases/ the list of socially and educationally bac#ward classes has been specified
by caste/ but that does not necessarily mean that caste was the sole consideration and that
persons belonging to these castes are also not a class of socially and educationally
bac#ward citi8ens"2
6urther/ in the case of Station Masters and +sst. Station Masters +ssociation v" ,enera
Manager* Centra )ai%a#
-
* for promotion the candidates were differentiated on the basis
of those who had a diploma and those who had an engineering degree" 'n another
instance/ the %ourt had accepted the classification based on some candidates being direct
recruits and other being promotees"
'n the case of State of .eraa v" N.M. 'homas
F
* under Article 1F =1>/ the %ourt re)ected
classification that sought to differentiate persons on the ground that they belonged to two
sections of the population" 't was also held that to e,pand the frontiers of classification
beyond those which have so far being recogni8ed under 1F =1> is bound to result in
creation of classes for favoured and preferential treatment for public employment and
thus erode the concept of e;uality of opportunity for all citi8ens in matters related to
employment under the 5tate"
'n M.) Baaji v" State of M#sore
H
* the 5upreme %ourt emphasi8ed that social
bac#wardness in the alternate analysis is a result of poverty/ that D 0The classes of citi8ens
who are deplorably poor automatically become socially bac#ward" That certain
occupations too may contribute to ma#ing persons following them bac#ward" That
therefore/ economic bac#wardness and criteria such as occupation and habitation are
much more reliable criteria for determining bac#wardness" 't recogni8ed that caste could
be a relevant factor but stressed that under no circumstances must it may be made the sole
or even the dominant test" The %ourt gave additional reasons for shunning caste as the
G
=19F@> ! 5%R H@F
+
A'R 19FA 5% @G
F
A'R 19HF 5% G9A
H
A'R 19F 5% FG9
+
dominant criteria" Doing so/ it said thatD 0May not always be logical/ and may perhaps
contain the vice of perpetuating the caste themselves"2 Moreover/ there are groups in
religions that have forsworn caste/ li#e 'slam and %hristianity/ which may be as deserving
of help as the castes among *indus"
This matter was put to test again in the case of ). Chitraekha v" State of M#sore
/
* Iustice
5ubba Rao said that while caste may be a relevant circumstance for ascertaining
bac#wardness in certain instances/ if an authority could identify bac#wardness/ without
reference to caste/ that classification will be valid" *e pointed out htat Article 1+ =G>
spea#s of 0classes2 and not 0castes2" *e said that if the ma#ers of the %onstitution
intended to ta#e caste as units of social and educational bac#wardness/ they would have
said so as in the case of 5cheduled %astes and 5cheduled Tribes" This leads to a
reasonable inference that the e,pression 0classes2 is not synonymous with 0castes2 and
there would be an anomalous situation arising in case the two e,pressions are e;uated"
'n the case of +. (eeriakar!ppan v" State of 'ami Nad!
0
* the 5upreme %ourt was face
with an instance in which students who had admittedly brilliant record were denied
admission as seats were reserved for members of the caste" 't was held thatD 0A caste has
always been recogni8ed as a class2 and 0there is no gainsaying in the fact that there are
numerous castes in the country that are socially and educationally bac#ward" To ignore
their e,istence is to ignore the facts of life"2
'n the case of +khi Bhart#a Soshit .aramchari Sangh ()ai%a#) v" 1nion of 2ndia
34
* the
%ourt observed thatD 0+rtice 35 (4) promises that the State m!st app# e6!ai&ing
techni6!es %hich %i enarge their opport!nities and there$#* progressive# diminish the
need for props. 'he s!ccess of State action !nder 35 (4) consists in the speed in %hich the
res!t7orientation %ithers a%a# as no onger a need* not in the ever %idening and
everasting operation of an e8ception +rtice 35 (4) as if it %ere a s!per f!ndamenta
right to contin!e $ack%ard a the time. 'o end immortait# to the reservation poic# is to
defeat its raison d9etre: to poitici&e this provision for comm!na s!pport and part ends is
@
A'R 19FG 5% 1@!
9
=19H> 1 5%% @
1A
=19@1> 1 5%% !GF
F
to s!$vert the soemn !ndertaking of +rtice 35 (3): to casteif# reservations even $e#ond
the disma gro!ps of $ack%ard7most peope e!phemistica# descri$ed as the SC and S'
is to* r!n a grave constit!tiona risk. Caste* ipso facto* is not cass in a sec!ar state.
*owever/ the scale slowly tilted completely in favour of the caste-is-class advocates as in
the case of State of +ndhra (radesh v" 1. S. V. Baram
33
/ the 5upreme %ourt came to the
conclusion that a caste is a class" 6urther/ in the case of ;anki (rasad (arimoo v" State of
;amm! and .ashmir
3"
* it was held that the group see#ing reservations must not only be
economically bac#ward but also socially and educationally bac#ward"
'n ..C. Vasanth .!mar v" State of .arnataka
33
* 't was laid down that the reservation
policy should be based on economic criteria because of two considerationsD <irst#/ only
if this were done could caste be removed while ma#ing special provision sunder 1+ =G>
and 1F =G>" Second#* only the privileged groups within the bac#ward classes reap all the
benefits of reservations/ with the result that the lowest of the low were stric#en with
poverty and are therefore/ socially and educationally bac#ward/ remain deprived of these
provisions which are meant for their advancement"
'n the case of 2ndra Sa%hne# v" 1nion of 2ndia
34
it was held that for reservations/ class
must be bac#ward and not ade;uately represented in services under 5tate" The %ourt also
laid down the criteria regarding the identification of bac#ward classes sub)ect to )udicial
review" The reservations contemplated in matter of employment in Article 1F =G> will not
to e,ceed +AJ" *owever/ the %ourt held that the rule cannot be related to total strength of
class/ service or cadre and the reservation of posts under Article 1F =G> confined to initial
appointment only and cannot e,tend to providing reservation in matter of promotion" The
ma,imum time period for which vacancies could be carried forward was outlined to be a
three years" 't was further added that the creamy layer/ among the most bac#ward classes
of citi8ens is to be e,cluded"
11
=19H!> 1 5%% FFA
1!
=19H> 1 5%% G!A
1
=19@+> 5upp" 5%% H1G
1G
A'R 199 5% GHH
H
The 5upreme %ourt in this case directed the 5tates to identify Bcreamy layerB amongst the
bac#ward classes and e,clude them from the purview of reservation" 'ndisputably/
pursuant to or in furtherance of the said directions/ the 4nion of 'ndia appointed a
%ommission" 't issued an 1ffice Memorandum being dated 5eptember @/ 199 laying
down guidelines for identifying Bcreamy layerB/ inter aia/ stipulating that the sons and
daughters of persons having gross annual income of Rs"1 la#h or above would be
e,cluded"
't heldD
0'he ver# concept of a cass denotes a n!m$er of persons having certain common traits
%hich disting!ish them from the others. 2n a $ack%ard cass !nder Ca!se (4) of +rtice
35* if the connecting ink is the socia $ack%ardness* it sho!d $road# $e the same in a
given cass. 2f some of the mem$ers are far too advanced socia# (%hich in the conte8t*
necessari# means economica# and* ma# aso mean ed!cationa#) the connecting
thread $et%een them and the remaining cass snaps. 'he# %o!d $e misfits in the cass.
+fter e8c!ding them aone* %o!d the cass $e a compact cass.2
The %ourt categorically stated that identification of such a class should be done on a
realistic basis" Moreover it also approved of ma#ing groups within the reserved
categories" 't held that there is no constitutional or legal bar for a 5tate in categorising the
bac#ward classes as bac#ward and more bac#ward class"
MANDAL II
5i,teen years from Mandal '/ the report is bac# in the public eye through the intense
debate in the media and at other forums on the intent of *uman Resource Development
Minister Ar)un 5ingh to implement its other portion"

't all started when Ar)un 5ingh made
public the government&s plans of introducing reservation for 1ther Bac#ward %lasses
=1B%s> in educational institutions including the ''Ts and ''Ms under Article 1+=+>"
Article 1+=+>
1+
of the %onstitution added by the 9
rd
Amendment/ !AA+ had come into
1+
7othing in this article or in sub-clause =g> of clause =1> of article 19 shall prevent the 5tate from ma#ing
any special provision/ by law/ for the advancement of any socially and educationally bac#ward classes of
citi8ens or for the 5cheduled %astes or the 5cheduled Tribes in so far as such special provisions relate to
@
force on Ianuary !A/ !AAF/ after having received Presidential assent/ thus facilitating the
advancement of the socially and educationally bac#ward classes in matters of admission
to educational institutions through reservation of seats and other means"
'f implemented/ the new policy would ta#e the overall reservation in the %entral
government-funded higher education institutions to G9"+ per cent from the current !!"+
=for 5% and 5T students>"The governmentBs move follows the passage of the 1AGth
amendment to the %onstitution which enables the %entre to provide upto !H per cent
reservation and the 5tates according to their need"
The 'ndian Parliament has passed the 1AG
th
%onstitution Amendment Bill/ providing
reservations for the socially and educationally bac#ward classes/ besides the 5cheduled
%lasses and 5cheduled Tribes/ in all private aided and unaided educational institutions"
The amendment is the governmentBs attempt to offset the effect of the recent 5upreme
%ourt )udgement that categorically said that in an unaided =which runs without
government funding> educational institution -- whether run by non-minorities or
minorities -- the government cannot implement its policy of reservation"
their admission to educational institutions including private educational institutions/ whether aided or
unaided by the 5tate/ other than the minority educational institutions referred to in clause =1> of article A
9
R RESERVATION ESERVATION IN IN J JOBS OBS
Reservation in )obs in the public sector as well as public sector has been a topic of
dispute for the past many years" .hile in the public sector/ the dispute has been lately
over the reservation in promotion to higher posts in addition to reservation in recruitment/
in the private sector the very idea of reservation has been critici8ed"
Reservation in prootion
'n 2ndra Sa%hne# v" 1nion of 2ndia
35
the 5upreme %ourt clearly re)ected
reservations in promotions and ruled that promotions should be confined only to
initial recruitments"
*owever/ by the HH
th
Amendment in 199+ another clause was inserted into Article
1F=G> in the form of Article 1F=GA>
1H
which made reservation in promotion
constitutionally valid" Thus this amendment overruled the 5upreme %ourt
decision in the 'ndra 5awhney&s case"
'n +jit Singh ;an!ja v" State of (!nja$
3/
=A)it 5ingh '>/ it was held by a three
)udge 5% bench that $conse;uential seniority& is not constitutionally valid and
would lead to reverse discrimination instead of affirmative action"
'n ;agdish =a v" State of >ar#ana
30
* $ conse;uential seniority& was upheld"
'n +jit Singh and ?rs. v" 1nion of 2ndia
"4
=A)it 5ingh ''>/ a five )udge 5% bench
clearly overruled Iagdish Kal and upheld A)it 5ingh='>"
1F
199! 5upp" => 5%% !1H
1 H
Article 1F=GA> - 7othing in this article shall prevent the 5tate from ma#ing any
provision for reservation in matters of promotion/ with conse;uential seniority/ to any
class or classes of posts in the services under the 5tate in favour of the 5cheduled %astes
and the 5cheduled Tribes which/ in the opinion of the 5tate/ are not ade;uately represented
in the services under the 5tate"
1@
199F =!> 5%% H1+
19
=199H> F 5%% +@
!A
1999 =H> 5%% !A9
1A
*owever by the @+
th
Amendment in !AA1/ the term $conse;uential seniority& was
inserted into Article 1F=GA>" This amendment thus overruled A)it 5ingh ' as well
as A)it 5ingh ''"
'n )... Sa$har%a and ?rs" v" State of (!nja$ and ?rs"
!1
/ it was held by a five
)udge 5% bench that the carry forward rule
!!
should be included within the +AJ
reservation"
*owever by the @1
st
Amendment/ !AAA / another clause was inserted into Article
1F=G> in the form of Article 1F=GB>
!
which laid down that the carry forward rule
should not be included in the +AJ reservation for the ne,t year" This Amendment
thus overruled the R"3"5abharwal decision"
'n Vinod .!mar v" 1nion of 2ndia
"4
/ it was held by the 5% that rela,ation of
;ualifying mar#s and standards of evaluation in matters of reservation in
promotion was not permissible under Article 1F=G>
!+
in view of Article +
!F
of
the %onstitution"
*owever by the @!
nd
Amendment !AAA/ a proviso
!H
was added in Article +
which allowed the rela,ation of mar#s in promotion tests for the reserved
categories"
!1
=199+> ! 5%% HG+
!!
.hen the reserved seats in a particular year are left vacant/ those seats are carried forward to the ne,t
year&s reservations" This is #nown as the %arry 6orward Rule"
!
7othing in this article shall prevent the 5tate 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
=G> or clause =GA> 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
!G
199F =F> 5%% +@A
!+
7othing in this article shall prevent the 5tate from ma#ing any provision for the reservation of
appointments or posts in favour of any bac#ward class of citi8ens which/ in the opinion of the 5tate/ is not
ade;uately represented in the services under the 5tate"
!F
The claims of the members of the 5cheduled %astes and the 5cheduled Tribes shall be ta#en into
consideration/ consistently with the maintenance of efficiency of administration/ in the ma#ing of
appointments to services and posts in connection with the affairs of the 4nion or of a 5tate"
! H
Provided that nothing in this article shall prevent in ma#ing of any provision in favour of the members of
the 5cheduled %astes and the 5cheduled Tribes for rela,ation in ;ualifying mar#s in any e,amination or
lowering the standards of evaluation/ for reservation in matters or promotion to any class or classes of
services or posts in connection with the affairs of the 4nion or of a 5tate"
11
As seen in the above cases/ whenever there have been measures by the )udiciary to
prevent Affirmative Action from leading to Reverse Discrimination towards the general
category/ the legislature has used its Amendment power under Article F@ to overrule the
decisions of the 5upreme %ourt"
'n this matter/ in a recent !AAF )udgment/ M. Nagaraj and ?rs. v. 1nion of 2ndia (1?2)
and ?rs
"/
/ the %onstitutional validity of the four aforesaid Amendments was challenged"
't was contended by the petitioner that these amendments are violative of the Article 1G
and thus are violative of the Basic 5tructure of the %onstitution" Moreover it was
contended that the power of amendment was limited as held in 3eshavananda Bharati
case and cannot be used to amend the Basic 5tructure of the %onstitution" *owever it was
held that these amendments as such are only $enabling provisions& and do not alter the
structure of Article 1F and thus are not violative of article 1G" 't was held in this case thatD
0@e reiterate that the ceiing7imit of -4A* the concept of cream# a#er and the
compeing reasons* name#* $ack%ardness* inade6!ac# of representation and overa
administrative efficienc# are a constit!tiona re6!irements %itho!t %hich the str!ct!re
of e6!ait# of opport!nit# in +rtice 35 %o!d coapse. >o%ever* in this case* as stated*
the main iss!e concerns the Be8tent of reservationB. 2n this regard the concerned State
%i have to sho% in each case the e8istence of the compeing reasons* name#*
$ack%ardness* inade6!ac# of representation and overa administrative efficienc# $efore
making provision for reservation. +s stated a$ove* the imp!gned provision is an ena$ing
provision. 'he State is not $o!nd to make reservation for SCCS' in matter of promotions.
>o%ever if the# %ish to e8ercise their discretion and make s!ch provision* the State has
to coect 6!antifia$e data sho%ing $ack%ardness of the cass and inade6!ac# of
representation of that cass in p!$ic empo#ment in addition to compiance of +rtice
33-. 2t is made cear that even if the State has compeing reasons* as stated a$ove* the
State %i have to see that its reservation provision does not ead to e8cessiveness so as to
$reach the ceiing7imit of -4A or o$iterate the cream# a#er or e8tend the reservation
indefinite#"2
!@
=!AAF>@ 5%% !1!
1!
Another very important case pertaining to reservation in )obs was D.V. Chinnaiah v" State
of +ndhra (radesh and ?rs.
"0
'n this case/ the respondents The 5tate of Andhra Pradesh =the 5tate> appointed a
%ommission headed by Iustice Ramachandra Ra)u =Retd"> to identify the groups amongst
the 5cheduled %astes found in the Kist prepared under Article G1 of the %onstitution of
'ndia by the President/ who had failed to secure the benefit of the reservations provided
for 5cheduled %astes in the 5tate in admission to professional colleges and appointment
to services in the 5tate"
The petitioners contended that the 5tate Kegislature has no competence to ma#e any law
in regard to bifurcation of the Presidential Kist of 5cheduled %astes prepared under
Article G1 =1>
A
of the %onstitution/ therefore the impugned legislation being one solely
meant for sub-dividing or sub-grouping the castes enumerated in the Presidential Kist/ the
same suffers from lac# of legislative competence"
't was held that the bac#ward class of citi8ens enshrined in Article 1F=G> of the
%onstitution includes 5cheduled %astes and 5cheduled Tribes" The whole basis of
reservation is to provide additional protection to the members of the 5cheduled %astes
and 5cheduled Tribes as a class of persons who have been suffering since a considerable
length of time due to social and educational bac#wardness" The protection and
reservation is afforded to a homogeneous group" 6urther classification andEor regrouping
the homogeneous groups by 5tate Kegislature would tin#er with the Presidential
7otification issued under Article G1/ which is constitutionally impermissible" By the
impugned legislation/ the 5tate has sought to re-group the homogeneous group specified
in Presidential 7otification for the purposes of reservation and appointments" 't would
tantamount to discrimination in reverse and would attract the wrath of Article 1G of the
!9
A'R !AA+ 5% 1F!
A
The President may with respect to any 5tate or 4nion territory/ and where it is a 5tate/ after consultation
with the (overnor thereof/ by public notification/ specify the castes/ races or tribes or parts of or groups
within castes/ races or tribes which shall for the purposes of this %onstitution be deemed to be 5cheduled
%astes in relation to that 5tate or 4nion territory/ as the case may be"
1
%onstitution" 't is a trite law that )ustice must be e;uitable" Iustice to one group at the
costs of in)ustice to other group is another way of perpetuating in)ustice"
The ;uestion therein was as to whether in view of the provisions of Article G1 of the
%onstitution of 'ndia and the %onstitution =5cheduled %astes> 1rder/ 19+A/ it was
permissible in law to identify groups amongst 5cheduled %astes which itself constitutes a
group within the meaning thereof" This %ourt negatived such a classification holdingD
"""'t is also difficult to agree with the *igh %ourt that for the purpose of identifying
bac#wardness/ a further in;uiry can be made by appointing a commission as to who
amongst the members of the 5cheduled %astes is more bac#ward" 'f benefits of
reservation are not percolating to them e;uitably/ measures should be ta#en to see that
they are given such ade;uate or additional training so as to enable them to compete with
the others but the same would not mean that in the process of rationalising the reservation
to the 5cheduled %astes the constitutional mandate of Articles 1G/ 1+ and 1F could be
violated"
I.R. Coelho (Dead) By LRs. v! State of Tamil Nadu and Ors.

"e#i"e" on $$
t%
Jan&ar'(
)**+
A nine )udge bench of the 5% in a landmar# ruling held that the 9
th
5chedule was open to
Iudicial Review" Larlier as per Article 1=B>
1
/ the laws under the 7inth 5chedule could
not be challenged" Despite of the fact that the 7inth 5chedule which was inserted by the
1
st
Amendment/ 19+1 was relating to land reforms/ it was misused by the introduction of
Article 1=B> ma#ing the laws under this 5chedule immune to challenge" Thus many laws
which were constitutionally invalid were put under this 5chedule especially laws
1
.ithout pre)udice to the generality of the provisions contained in article 1A/ none of
the Acts and Regulations specified in the 7inth 5chedule nor any of the provisions thereof
shall be deemed to be void/ or ever to have become void/ on the ground that such Act/
Regulation or provision is inconsistent with/ or ta#es away or abridges any of the rights
conferred by/ any provisions of this Part/ and notwithstanding any )udgment/ decree or
order of any court or Tribunal to the contrary/ each of the said Acts and Regulations shall/
sub)ect to the power of any competent Kegislature to repeal or amend it/ continue in force"
1G
pertaining to reservation in various states for instance/ by the %onstitution =HFth
Amendment> Act of 199G/ Parliament included the Tamil 7adu Bac#ward %lasses/
5cheduled %astes and 5cheduled Tribes =Reservation of seats in educational institutions
and of appointments or posts in the services under the 5tate> Act/ 199/ in the 7inth
5chedule" The Act/ which provides for F9 per cent reservation/ runs counter to the
5upreme %ourt ruling in the Mandal case that reservation should not e,ceed +A per cent"
1+
RECENT DEVELOPMENTS
C COURT OURT CLEARS CLEARS ALL ALL,I ,INDIA NDIA SC SC- -ST ST .UOTA .UOTA IN IN P/ P/ MEDICINE MEDICINE
0) 0)
The 5upreme %ourt on .ednesday approved the %entreBs proposal to provide !!"+ per
cent reservation for 5cheduled %asteE5cheduled Tribe candidates under the all-'ndia
;uota in postgraduate admissions to government medical colleges for !AAH-A@"
A Bench comprising %hief Iustice 3"(" Bala#rishnan/ Iustice Dalveer Bhandari and
Iustice D"3" Iain gave the nod after hearing Additional 5olicitor-(eneral (opal
5ubramaniam/ appearing for the %entre/ and counsel for other parties/ which also gave
consent for the proposal"
6or !AAF-!AAH/ the %entre did not provide for 5%E5T reservation under the +A per cent
all-'ndia ;uota following a !AA+ )udgment/ which said it should be e,clusive of
reservation" As a result/ reservation was provided only under the 5tate ;uota"
Constit&tiona1 o21i3ations
*owever in May !AAF the court clarified that its )udgment did not ta#e away the
constitutional reservation" At that time/ the %entre assured the court that it was conscious
of its constitutional obligations to provide reservation for the 5%E5T under the all-'ndia
;uota"
The %entre decided to provide 1+ per cent reservation for the 5%s and H"+ per cent for the
5Ts under the all-'ndia ;uota"
't sought permission to implement the proposal for the academic year !AAH-!AA@/
considering that the prospectus was already issued providing for such a ;uota with court
approval"
!
httpDEEwww"hindu"comE!AAHEA!EA1EstoriesE!AAHA!A1A+9HA1AA"htm/ last visited on 1A
th
March/ !AAH
1F
CRITICISM O4 THE 4LAWS IN THE RESERVATION POLIC5
THE CRITERIA O4 RESERVATION 6 CASTE"
The scheme of the %onstitution clearly says that e,cept when referring to
5cheduled %aste has been given a negative connotation/ namely/ that caste will
not be ground for discrimination" The word caste is studiously shunned and in its
place e,pressions li#e $wea#er sections& of the people or $socially and
educationally bac#ward& classes of people are used" *owever/ todayD
3. Keaders and political parties mobili8e groups to demand reservations on the
basis of castes.
". .hen the issue of reservation is urged before commissions/ it is argued that
they be given reservations on the basis of castes.
3. After the %ommissions e,amine the case/ they eventually recommend the
reservations be given on the basis of such castes"
4. .hen (overnments decree reservations/ they are given to particular castes"
-. The reservations that the %ourts uphold time and again are the reservations to
castes"
Thus/ what was e,plicitly forbidden by the %onstitution- classification on the
basis of caste- has become the rule"
CREAM5 LA5ER
't is the creamy layer among the reserved classes which absorbs all the benefits of
reservation" 'n fact/ several studies show that the 1B% class is ;uite comparable
with the general caste in terms of annual per capita consumption e,penditure/ and
the top strata of 1B% is ahead in a host of consumption areas" This clearly shows
that the very ob)ective of reservation remains unfulfilled" 6urther people of the so-
called 0forward classes2 suffer"
The ;uality of the elite institutions would be severely affected since merit is being
compromised by reserving seats for some caste-based communities" Moreover it
would lead to the educational institutions losing their autonomy"
1H
Iustice C"R" 3rishna 'yer said in the 7"M" Thomas case/ 0Eo! can9t thro% to the %inds
considerations of administrative capa$iit# and grind the %hees of the ,overnment
to a hat in the name of F>arijan %efare9.G
The Reservation in ''T / ''Ms and other elite professional institute is not going to
improve the status of castes en)oying the reservation policy" 1ur leaders are so short
sighted by their own selfish aim that they donBt even try to recogni8e the greater aim
of country or even the bac#ward castes" Do our leaders thin# that by compromising
on the ;uality of premier institute they will ma#e better engineer and managers who
are the vanguard of society: 'snBt it a in)ustice to all who wonBt be able to ma#e it to
''T and ''Ms because of reservation" Do we thin# that we can substitute one 7arayana
Murthy/ Linstein/ and Amartya 5en by increasing number of mediocre people:
Reservation on such a basis is sacrificing meritocracy for mediocrity" .e need to find
out better solutions for a better outcome"
*ow much the standards may be diluted: Lven when the 5upreme %ourt is
confronted with the recruitment to the )udiciary itself/ it in effect urges that the
standards prescribed be lowered s!fficient#. And what is the test of sufficiency: That
the reservationists actually get recruited"
6urthermore/ a proviso has been added for the rela,ation of ;ualifying mar#s in
Article +" 'f standards can be rela,ed/ why can the rela,ation not be to any e,tent/
even to the e,tent of waiving them altogether: 5ure enough/ that is e,actly what has
happened"
6irst reservations at the point of entry/ then in promotion/ then reservations in
promotion in accordance with minutely classified Roosters" And we are to believe
that none of this will affect the e77i#ien#' by which the government functions"
The reservationists have got to leap over the others not because they displayed greater
proficiencies but because of reservations and the related paraphernalia- the Rooster
1@
system and the li#e" *ow can the outcome of this not affect the morale and discipline/
indeed the entire wor# culture in the services: The persons who have leap-frogged are
youngD as a result/ they will occupy all the senior positions for years- the general
category employees will never reach those senior posts for no fault of their own
e8#ept their birth"
The multi-national companies would be deterred by this action and further the
foreign investments will dry down badly affecting the growth of 'ndian Lconomy"
Reservation in higher education and )obs without absolutely any effort to provide
proper primary education cannot be a solution"
Lconomic 5tatus should be the basis for reservation since not everyone from the
so-called upper class are rich/ and not all from so called lower classes are poor"
This would create a huge unrest in the 'ndian 5ociety" 7o consideration for merit
would deter the determination of many deserving educated students" This would
aggravate the problem of Brain Drain from 'ndia of under-graduate and graduate
students to foreign universities for higher education" 't would be a ma)or setbac#
to 'ndian education and economy"
The repercussions of un;ualified candidates assuming critical positions in the
society li#e doctors/ engineers etc" will be disastrous for the society"
19
C CONCLUSION ONCLUSION
.hat was e,plicitly forbidden by the %onstitution- classification based on caste- has
become the rule: *ow is it that what were the enabling provisions have become
mandator# minimaH *ow is it that the figure of +AJ has been e,ceeded blatantly: Are
the benefits not being hogged by a few/ the better-off among these castes: *as the
$creamy layer& actually been hived off: *ow is it that what were begun as reservations at
entry have become reservations in promotions also: *ow did this become a right to
acceerated promotions: 7ow/ how did that become a right $accelerated promotions with
conse;uential seniority&: *ow did that become a right to have prescribed standards
diluted to the point of being waived altogether/ even in educational institutions: 's this
any way to become a $#nowledge super-power&:
Lven the 5upreme %ourt correctly does not put its faith in the hope that these sections
will overcome their initial handicaps eventually" The %ourt rightly e,cused populism and
bases its declaration on the sound premise that the groups and individuals must be first
prepared for the )obs they are to be assigned before granting them the right to claim those
)obs as a matter of right" Transpose the premise/ transpose the very words to instances in
which the persons who are getting into medical and engineering courses are little
e;uipped for them/ and see how well they fit" 'n this case/ the 5upreme %ourt maintains
that first the candidates must be e;uipped" 'n others when once inducted/ they&ll
eventually overcome their initial handicaps" 2nd!ction in one set of cases and ded!ction
in othersI
*ow have the %ourts come to ac;uiesce in such wholesale perversion of our
%onstitution: 's their role to cheer such perversion on is it to conserve or protect the
%onstitution:
'tBs sad that even in the !1st century/ when other countries are )ust over growing/ 'ndia is
ta#ing decisions li#e further e,tending reservations/ and is digging its own development"
The picture is clearM any country will prosper/ when merit rules/ not the caste and its
!A
reservations" .ho wants to ta#e the service of a doctor/ a pilot/ or an engineer/ who did
not ;ualify for the test itself: .e want 'ndia to be an ideal place for the deserving merit
people" Already enough of brain drain happened in this country/ due to lac# of proper
opportunities" The government and the politicians should eradicate the basic problems of
the bac#ward people at the ground level by providing them education and financial aid/
but no good will come from solving the problem superficially i"e" by mere reservations/
their intelligence will not grow" That too already one generation en)oyed the benefits of
reservations "5o many people among them are already rich" 5o why should again their
children get reservations: 'nstead they could help a financially bac#ward upper class
person" Lven there should be a minimum educational ;ualification to ;ualify as a
politicianM in that case/ they will not come out with such ignorant proposals"
The raison d9etre of the reservation policy was to bring the so-called bac#ward classes to
the level of the so-called forward classes" 6irst reservations in 4( courses/ then in P(
courses even in super specialty courses li#e ''Ts and ''Ms/ then further in )obs/ then even
in promotions that too based on minutely classified Rosters 9 when will the basic
ob)ective of this entire gamut of reservations be attained:
The way to climb out of the abyss is manifest" 7o status/ no )ob/ no post/ no position/ no
concession should be accorded to anyone by virtue of herEhis birth/ caste/ creed/ religion
or race" 'ndeed none of these should be given to anyone as an entitlement/ as a matter of
right" Lach of these must be something for which we have to strive"
?rtega ,asset comes trueD 5tandards are dismissed as elitistM mediocrity has become the
normM vulgarity is authenticityM intimidation is argumentM assault is proofN
This way/ as Pandit)i pointed out decades ago/ lies not )ust folly/ but disaster"
!1
BIBLIO/RAPH5
Boo#s ReferredD
1" Arun 5hourie/ <aing ?ver Back%ards/ = A5A Publications O Rupa " %o" / 7ew
Delhi/ 1
st
edn"/ !AAF>
!" D"D"Basu/ Shorter Constit!tion of 2ndia* =.adhwa Publications/ 7ew Delhi/
!AA1>
" *"M"5eervai/ Constit!tiona =a% of 2ndia* =7"M"Tripathi Pvt" Ktd"/ 7ew
Delhi/ 199>
G" M"P"Iain/ Constit!tiona =a% of 2ndia* =.adhwa Publications/ 7ew Delhi/
!AA>
*yperlin#sD
1" httpDEEwww"hinduonnet"comEflineEfl!A@EstoriesE!AAFA+A+AAGFAAGAA"htm/ visited
on 1+
th
March/ !AAH
!" httpDEEwww"hindu"comE!AAHEA!EA1EstoriesE!AAHA!A1A+9HA1AA"htm/ last visited on
1A
th
March/ !AAH
!!