Issue of Reservation

What is the Issue?

The goal of reservation in India has been to bring about an improvement in the welfare who,
historically, have been economically and socially depressed. But, in arriving at this judgement
about who should be eligible for reservation, the criterion has been a persons caste rather than
his income or wealth. Consequently, groups belonging to what Article 115 of the Indian
Constitution calls socially and educationally backward classes have benefited from reservation
even though, in practice, many of these groups could not be regarded as backward. This has
meant that many of the benefits of reservation have been captured by well-off groups from the
depressed classes (for example, chamars from the SC) while poorer groups from the depressed
(for example, bhangis from the SC) have failed to benefit.

How Complex?
Article 15(4) of our constitution empowers the government to make special provisions for
advancement of backward classes. Similarly Article 16 provides for equality of opportunity in
matters of employment or appointment to any post under the State.

Clause 2 of article 16 lays down that no citizen on grounds of religion, race, caste, sex,
descent, place of birth, residence or any of them be discriminated in respect of any employment
or office under the State.

However clause 4 of the same article provides for an exception by conferring a certain kind of
power on the government:

it empowers the state to make special provision for the reservation of appointments of posts in
favour of any backward class of citizens which in the opinion of the state are not adequately
represented in the services

Thus two conditions have to be satisfied:

1. The class of citizens is backward

2. The said class is not adequately represented.

In a case Balaji v/s State of Mysore (AIR 1963 SC649) it was held that caste of a person cannot
be the sole criteria for ascertaining whether a particular caste is backward or not. Determinants
such as poverty, occupation, place of habitation may all be relevant factors to be taken into

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consideration. The court further held that it does not mean that if once a caste is considered to
be backward it will continue to be backward for all other times. The government should review
the test and if a class reaches the state of progress where reservation is not necessary it should
delete that class from the list of backward classes.

Remedies & Measures

To remove this evil it suggested the following:

1. Make education mandatory and free for all till age of 15

2. Propose reservation based on economic status

3. Provide opportunity to students to earn while they study.

Instead of introducing reservations for these backward classes what is required is to bring about
revolutionary changes in our education system at the grass-root level. When proper education is
not provided to children belonging to such categories during the primary stage itself then on
what basis are the reservations provided at a subsequent stage.

Reservations are nothing but means to prosper the vote banks of politicians. They are hindering
the countrys growth, development and competency in all aspects. On one hand the preamble of
our constitution states that we are a free, democratic and sovereign nation and on the other hand
reservation system is chaining all these aspects into its clutches. It is creating disparity and
differences amongst the people. The constitution lays down that every child has a right to
education and no where expresses that any child belonging to a backward class has a little more
of this right than the general category. By reserving one category against another creates a
feeling of division which is now resulting in a chaos with every small section of the society
asking for it.

Reservations on the basis of caste and not on the basis of condition are bad and unacceptable.
Fair and just reservations to uplift the people with poor conditions of life, those who dont have
meals to eat, clothes to wear and no home to live in. They shall be made on the basis of factors
such as gender as women are more disadvantaged than men since primitive times, domicile,
family education, family employment, family property, family income and if any disabilities and
traumas. The process of reservation should be such that it filters the truly economically deprived
individuals and bring them all to justice.

Current Situation
Currently, as per the government policy, 15% of the government jobs and 15% of the students
admitted to universities must be from Scheduled castes and for the Scheduled tribes there is a
reservation of about 7.5 %. Other than this, the state governments also follow their own

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reservation policies respectively based upon the population constitution of each state. So nearly
50% seats are reserved.

Laws Related
Every Constitution has philosophy of its own. The Preamble of our Constitution
proclaims the resolution of PEOPLE OF INDIA to constitute India into a SOVEREIGN,
SOCIALIST, SECULAR AND DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith
and worship; EQUALITY of status and opportunity; and to promote among them all ;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the
Nation. The ward 'social justice' in the Preamble implies recognition of greater good
to a larger number without deprivation of legal rights of anybody.

The concept of equality, enshrined in the Preamble has also found expression as a
fundamental right in Article 14 to 16, which we shall discuss in the next section.

Right To Equality-Article 14
The Article 14 of the Constitution is one of the fundamental rights of the Constitution of India. Let us
now know about this Article. Article 14 of the Constitution reads: The state shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India" What do the two
phrases in this Article namely equality before the law and equal protection of law mean? On the face
of it the two phrases may seem to be identical, but in fact, they mean different things.

While Equality before the law is negative concept; equal protection of laws is a positive one. The
former declares that everyone is equal before law, that no one can claim privileges and that all classes are
equally subject to the ordinary law of the land. Equal protection of Law, on the other hand means, that
among equals, the law should be equal and equally administered. That like should be treated as like. Or in
other words, persons differently circumstanced need not be treated in the same manner. For example
Equal protection of Law does not mean that every persons shall be taxed equally, but that persons under
the same category should be taxed by the same standard. The guarantee of equal protection thus is a
guarantee of equal treatment of persons in equal circumstances permitting differentiation in different
circumstances. If there were a reasonable basis for classification, the legislature would be entitled to make
different treatment. Thus, the legislature may (i) exempt certain classes of property from taxation at all,
such as charities, libraries etc; (ii) impose different specific taxes upon different trades and profession.

Illustration of reasonable classification: Yusuf V. State of Bombay, AIR.1954 S.C.321

Safeguards for public employment (Art-16)

Article 16 of the constitution provides for equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the state. Article 16 reads as under:

Clause(1):There shall be equality of opportunity for all citizens in matters relating to

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employment or appointment to any office under the State.

Clause(2):No citizen shall on grounds only of religion, race, caste sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of any employment
of office under the State.

Clause (3): Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the Government of
or any local or other authority within, a State or Union Territory, any requirement as to residence
within that State or Union Territory prior to such employment or appointment.

Clause (4)- Nothing in this Article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which in the
opinion of the State, is not adequately represented in the services under the state".

Clause (4-A): Nothing in this article shall prevent the State from making provision for
reservation in matters of promotion to any class or classes of posts in the services under the State
in favour of the Scheduled Castes and the Scheduled Tribes, which in the opinion of the State are
not adequately represented in the service of the State.

Clause (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 (4-A) as a separate class of vacancies
to be filled up in any succeeding year or years and such class of vacancies shall not be
considered together with the vacancies of the year in which they are being filled up for
determining the ceiling of fifty percent reservation on total number of vacancies of that year
(Constitution 81stAmendment Act, 2000).

Limitations of the Safeguard-Article 335

Article 335 of the Constitution originally read as under:- The claim of the members of the
Scheduled castes and the Scheduled Tribes shall be taken in to consideration, consistently with
the maintenance of efficiency of administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of the State.

The Honble Supreme Court has held in a number of cases, that Article 335 operates as a
limitation to the provision contained in Article 16(4) though Article 16(4) does not specifically
refer to Article 335 or raise any question of maintenance of efficiency of the administration.
Thus, reservation for the backward class will be struck down as violative of Article 14 and 16(1),
if it is unreasonably excessive. While forming an opinion for making reservations the State shall
also take cognisance of the limitation set out in Art.335 i.e. whether making reservation is
consistent with the maintenance of efficiency of administration. 82nd Amendment Act, 2000,

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amended the Article 335. The background for the amendment was that the Honble Supreme
Court in the case of S.Vinod Kumar Vs. U.O.I had held that the various instructions of
Government providing for lower qualifying marks/lesser standard of evaluation in matter of
promotion for candidates belonging to SC/ST are not permissible in view of the provisions
contained in Article 335. In view of this decision the various orders regarding lower qualifying
marks/standard of evaluation for SC/ST in the matter of promotion were withdrawn by the
Government w.e.f. 22.7.97. However, the Parliament decided to once again restore the
relaxations and concession in promotion and the following proviso to Art.335 were added:-
Provided that nothing in this Article shall prevent in making of any provisions in favour of the
members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in any
examination or lowering the standards of evaluation, for reservation in maters of promotion to
any class or classes of services or posts in connection with the affairs of the Union or of a State

Critical View on Reservation policy and Conclusion

Now we have seen that government had kept various welfare schemes for the SC and ST in
India. If we take few examples than reservations in educational systems, land allotments for
residents ( free of cost), agricultural land allotted free of cost for farming etc.

I believe that there should be reservation in the educational system of India. Due to which they
can also get good and higher education, but at the time of the jobs/ public service there should be
n reservation. A person has got almost 22 to 25 years benefit of reservation policy and had
completed his studies. Now he should stand on his own feets and should face the competition in
the market. They have got all the things which a person born in other cast has got by now.

If government still wants to keep reservation policy then now it should not be based on caste or
class, it should be based on the annual income of the person. If the person is earning less than he
requires more money for his family and children and this thing he can get only by a job or in
public service. By this means only such persons can provide good education to their children.

Judiciary has played great role in the reservation policy. The great example of this N Nagrajans
case, Ashok Kumar Thakor, and Indira Shawnays case. In this cases , supreme court has given
passing reference to the reservation on the SC & ST in jobs. But Supreme court has said that
reservation should not increase then 50% in any condition but in most of North Eastern state this
reservation is increased to 85% and still they have started a move to increase it to the 95% and
court is not taking any steps against it. By this way we can see that judiciary is also playing a
role in increase of reservation for SC & ST.

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Now days politicians are playing a major role in reservation policy. The reservation policy was
only for 10 years after the independence, for upliftment of SC and ST but till now it is continue
and no one has taken any step to amend it or revise it or to change it. The reason behind this is
the population of SC and ST in country. Nearly 33% voting is done by SC and ST so now if they
make any change in the reservation policy against the SC and ST then they have to suffer a lot
for the same. So they are not taking any steps against the reservation policy.

Bibliography
J.N.Pandey, The Constitutional Law of India

www.manupatra.com

www.legalservicesindia.com

www.youthkiawaaz.com

www.pravasiherald.com

By-
Chetan Kaushik
BA.LLB ( Hons.) 4th Sem
1505170008