Contents

1. Introduction……………………………………………2
 History……………………………………………………4
 Present Scenario………………………………………….7
2. Objectives………………………………………………8
3. Statement of Problem………………………………….9
 Equality before law (Creamy layer)……………………..9
4. Reservation and the Constitution……………………..14
 Reservation Policies……………………………………...14
 Constitutional Provisions………………………………...17
5. Reservation in Different Areas………………………..19
 Their Impacts…………………………………………….19
6. Welfare of SC’s, ST’s and OBC………………………23
7. Conclusion…………………………………………….25

1|Page Constitutional Framework for Reservation in India

 Chapter 1: Introduction

Reservation is a rule enforced by Indian law in a form of affirmative action according to which a
percentage of seats are reserved for the public sector units, union and state civil services, union
and state government departments and in all public and private educational institutions, except in
the religious/ linguistic minority educational institutions, for the socially and educationally
backward communities and the Scheduled Castes and Tribes who are inadequately represented in
these services and institutions. The reservation policy is also extended for the Scheduled Castes
and Scheduled Tribes for representation in the Parliament of India.

The theory for the provision of reservation by the state is the under-representation of the
identifiable groups as 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
underrepresented in nation-building activities. After introducing the provision for reservation
once, it got related to voting bank politics and the following governments and the Indian
Parliament routinely extended this period, without any free and fair revisions. Later, reservations
were introduced for other sections as well, for e.g. OBCs.1

The reservation is there to compensate for past discrimination, persecution or exploitation by the
ruling class of a culture or to address existing discrimination. The principle of affirmative action
is to promote social equality through the preferential treatment of socioeconomically
disadvantaged people. Moreover the basic aim of reservation is to create social equality. Social
equality is a social state of affairs in which all people within a specific society or isolated group
have the same status in a certain respect. At the very least, social equality includes equal rights
under the law, such as security, voting rights, freedom of speech and assembly, and the extent of
property rights. However, it also includes access to education, health care and other social
securities. It also includes equal opportunities and obligations, and so involves the whole society.

1Reservation
System in India: Concept, Arguments and Conclusions, Article by Puja Mondal, URL- -
http://www.yourarticlelibrary.com/essay/reservation-system-in-india-concept-arguments-and-conclusions/24973/

2|Page Constitutional Framework for Reservation in India

What is Reservation?

Reservation is a political instrument that delivers a public good which corrects the socio-
economic wrong. It is termed as Fair Discrimination.

Reservation in India is a form of affirmative action designed to improve the well-being of

perceived background and under-represented communities defined primarily by their ‘caste’ is a
phenomenon that commenced into force with the coming Indian Constitution.2

What is the Caste based reservation in India?

Caste is the all-pervasive feature of Indian society. Under the caste system the Brahmin occupied
the top of the hierarchy whereas the former untouchable occupied the lowest position in the
society. The ex-untouchables, known as scheduled castes, are the lowest ranked not only in term
of social position but also in term of economy, education and so on. Apart from the scheduled
castes (SCs), the other backward castes or other backward classes (OBCs) also occupy the low
position in the society. Another community of Indian society which is considered as most
deprived – economically, educationally etc. – is the scheduled tribes (STs).

Caste based Reservation is an affirmative action program with fixed quotas. India has three main
disadvantaged groups:

Scheduled Tribes: These are tribes with little access to education when we got independence.
They were typically disconnected from the rest of civilization and thus didn't experience as much
discrimination as the next group.

Scheduled Castes: These were among the most ill-treated communities historically. They
formed the lowest segment of Indian society and were not even included in the Hindu caste
system. These were the affected parties of the historic practice of Untouchability.

Other Backward Castes: These are a motley of caste that was usually at the bottom of Indian
caste pyramid (Shudras), but in various states this list have grown to include most of the caste in

2
Reservation system in India URL- https://www.slideshare.net/RANITBHAUMIK/reservation-system-in-india

3|Page Constitutional Framework for Reservation in India

India., rendering it almost pointless. The inclusion of this group in quota system is often highly
controversial and led to various protests & lawsuits across the country for the past 2 decades.3

History

The idea of reservation is introduced by Jyotirao Phule. The task to implement this idea of Phule
was undertaken by his disciple Rajashre Chatrapati Shahu Majaraj.4 It was first introduced in
1901 in Maharashtra.

In Indian society because of the caste system, India has also followed one type of racism and
because of this when Indian constitution was drafted the makers of Indian constitution
introduced reservation for certain caste and people, Scheduled Castes (SC) and Scheduled
Tribes.

If we will check the records in the year 1858 also British People knew how to divide and rule
India, and with this policy very intelligently they kept dividing India on the name of Religion,
Caste and sub-caste. 5

According to some people, Caste Based Reservation in India started in 2nd Century B.C. where
upper castes enjoyed caste based reservation.

Reservations in favor of Backward Classes (BCs) were introduced long before independence in a
large area, comprising the Presidency areas and the Princely states south of the Vindhyas.

In 1882, Hunter Commission was appointed.6

Mahatma Jyotirao Phule made a demand of free and compulsory education for all along with
proportionate reservation/representation in government jobs.

In the year 1902, Chatrapati Sahuji Maharaj, Maharaja of Kolhapur in Maharashtra introduced
reservation in favor of backward classes to eradicate poverty and give them chance to participate

3
Balaji Viswanathan, Indian by Birth, Indian by Thought. URL- https://www.quora.com/What-is-the-caste-based-
reservation-system-in-India-How-does-it-work
4
History of Reservation of India URL- http://indianliberationnews.com/index.php/download/item/53-history-of-
reservation-in-india
5
Reservation in India – A brief historyURL- http://www.realityviews.in/2010/03/reservation-in-india-brief-
history.html
6
Kunal Raut, Student that can tell you everything URL- https://www.quora.com/Why-did-reservation-start-in-India

4|Page Constitutional Framework for Reservation in India

in the state administration. The notification of 1902 created 50% reservation in services for
backward classes/communities in the State of Kolhapur. This notification is the first Government
An order providing for reservation for the welfare of depressed classes in India.

Because of caste system millions of families in India got ill-treatment and no opportunities to
rise in society.

In 1908, Reservations were introduced in favor of a number of castes and communities that had
little share in the administration by the British.

In 1909, Provisions were made by the Government of India Act 1909 commonly known as the
Morley-Minto Reforms and in 1919; Provisions were made by the Government of India Act
1919

In 1921, Madras Presidency introduces Communal GO in which reservation of 44 per cent for
non-Brahmins, 16 percent for Brahmins, 16 per cent for Muslims, 16 per cent for Anglo-Indians/
Christians and eight per cent for Scheduled Castes.

In 1935, Indian national congress passes are solution called Poona Pact to allocate separate
electoral constituencies for depressed classes.7

British people gave us few good things and few bad things. Bad list or bad things like a quota
system, division on the basis of caste and religion, British rulers introduced that to safeguard
their rule in India, but our Indian rulers also adopted same policy and ideas to create their own
family rule forever in India.8

Before Independence as well as after Independence also the sad story is that we never got any
opposition party who wanted to change this.

7
Supra 5
8
Page- Remove Caste Reservation URL-
https://www.facebook.com/indiancastereservation/posts/443449435861218

5|Page Constitutional Framework for Reservation in India

After Independence and Present Scenario

After Independence:

In 1947, India obtained Independence and Dr. Ambedkar was appointed the chairman of the
drafting committee for Indian Constitution. On 26/01/1950, The Constitution of India came into
force.

In 1951, In the case of State of Madras Vs. Smt. Champakam Dorairanjan AIR 1951 SC 226
Court has pronounced that caste based reservations as per Communal Award violate Article
15(1). The 1st constitutional amendment (Art. 15 (4)) introduced to make judgment invalid.

In 1953, Kalelkar Commission was established to assess the situation of the socially and
educationally backward class.

In 1963, Court has put 50% cap on reservations in the case of M R Balaji v Mysore AIR 1963
SC 649. Tamil Nadu (69%, under 9th schedule) and Rajasthan 68% exceeded this limit. In 1994,
Supreme Court advised Tamil Nadu to follow 50% limit

In 1979, Mandal Commission was established to assess the situation of the socially and
educationally backward. In 1980, the commission submitted a report, and recommended changes
to the existing quotas, increasing them from 22% to 49.5%. As of 2006 number of caste in the
backward class list went up to 2297 which is the increase of 60% from community list prepared
by Mandal commission.

In 1990, Mandal commission recommendations were implemented in Government Jobs by

Vishwanath Pratap Singh.

In 1991, Narasimha Rao Government introduced 10% separate reservation for Poor among
Forwarding Castes.

In 1995, Parliament by 77th Constitutional amendment inserted Art 16(4) (A) permitting
reservation in promotions to the Schedule Castes and Schedule Tribes.

2005 August 12 - The Supreme Court delivered a unanimous judgment by 7 judges on August
12, 2005 in the case of P.A. Inamdar & Ors. V. State of Maharashtra & Ors. declaring that the

6|Page Constitutional Framework for Reservation in India

State can't impose its reservation policy on minority and non-minority unaided private colleges,
including professional colleges. The 2005-93rd Constitutional amendment brought for ensuring
reservations. To other backward classes and Scheduled castes and Tribes in Private Educational
institutions. This effectively reversed the 2005 August Supreme Court judgment.

On 9th March 2010 - Women Reservation Bill passed in the Upper house, Rajya Sabha.

Like this Reservation in India is given on the basis of caste, sub-caste and religion, and political
parties are using this method to get the votes. For political gains and votes political parties will
keep the Ghost of Reservation alive forever, so it is better we Indians keep an eye and see that
the reservation benefits are going to real and needy persons of India based on the economic
status of the family not the rich class of Indians who became rich using reservation. 9

Present Scenario:

"It is against the fundamental principles of humanity, it is against the dictates of reason that a
man should, by reason of birth, be denied or given extra privileges"
-M.K Gandhi

We live in a free country and this freedom is a gift of democracy to us. Our constitution gives us
the right to freedom and most importantly to exercise this freedom in an equitable manner. At the
same time it is incumbent on the part of the state to ensure that equality prevails in all sections of
the society. However in today’s time one of the major roadblocks to this equality is the
Reservation System.

India being a developing nation is currently facing many challenges and the reservation system
being one of them. The current scenario clearly depicts that the ‘lower’ castes are still
discriminated in their daily lives. To uproot casteism it is important that we fight the reservation
system which alone will lead us to development, competency, equality and unity.

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

9
Supra 5

7|Page Constitutional Framework for Reservation in India

reservation policies respectively based upon the population constitution of each state. So nearly
50% seats are reserved.10

But there is an interesting fact that needs to be seen, that is the inclusion of provisions of
reservation in the Constitution of India based on caste in educational institutions was after the
intervention of the Supreme Court in the case of State of Madras v. Champakam Dorairajan
where the court struck down the classification for reservation being based on caste, race and
religion for the purpose of admission to educational institutions as unconstitutional.11

Objectives

1. Whether the reservation policies made by the government are for the betterment of
the SC’s, ST’s and other backward classes.
2. Whether the reservation policies are used in the proper directions or being misused
by the undeserving ones (Creamy layer).
3. Whether policies should be redesigned in a way that the general people who come
from the poor strata or economically backward class of the country as well as the
socially or caste based backward classes i.e., SC’s and ST’s get gains and uplift in a
balanced manner for their own welfare.

10
Reservation: Understanding The Past, Present And Solutions by Sumedha Upadhyay
URL- https://www.youthkiawaaz.com/2011/02/educational-reservations-india-solutions/
11
Review of Reservation Policy, Written by- Tapan Narayan URL-
http://www.legalserviceindia.com/articles/res_poss.htm

8|Page Constitutional Framework for Reservation in India

Chapter 2: Statement of Problem

Equality before law and the Reservation System (Creamy Layer)

The Constitution of India, adopted in 1950, defines the nation as a “Democratic Republic” which
ensures that all citizens are equal before the law, free from discrimination on grounds of caste,
creed, religion, sex, place of birth, and equality of opportunity in education and public
appointments. The Constitution also specifically abolishes untouchability.

On the another side, The Constitution lay down “special provisions‟ for the reservation of seats
in educational institutions, government service, PSU service, Parliament and state legislature for
Scheduled castes (SCs) and Scheduled Tribes (STs). The same section also defines “backward
classes” but neither gives a satisfactory definition of them nor lays any specific provisions on
their behalf. 12

The concept of equality has been derived from Preamble of the Indian Constitution which
guarantees equality of status and opportunity and Article 14 of the Indian Constitution which
states that “the State shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India”. The first expression ‘equality before the law’ which is
taken from the English common law, is a declaration of equality of all persons within the
territory of India, implying thereby the absence of any privilege in favor of any individual.

‘Equality before the law ‘means that amongst equal the law should be equal and equally
administered and that like should be treated alike. Hence it forbids discrimination between
persons who are substantially in similar circumstances or conditions. Article 14 forbids class
legislation, but does not forbid classification which rests upon reasonable grounds of distinction.
The principle of equality does not mean that every law must have universal application to all
persons who are not by nature, attainment or circumstances in the same position. The varying
needs of different classes of persons require different treatment. The goal of equality will not be
considered to be achieved till everyone will be on the equal footing. Thus the idea to attain
equality has given birth to the concept of reservation or affirmative action. Reservation is a
special treatment given to the unlike till they come on the equal footing with the likes in the

12
An Analysis of Reservation System in India by S. Yesu Suresh
URL- http://www.academia.edu/18311102/An_Analysis_of_Reservation_System_in_India

9|Page Constitutional Framework for Reservation in India

society. Reservation is a concept developed with a view to providing special help to the weak so
that they can overcome their weakness and can compete with the strong. In these landmark cases
Supreme Court has given wonderful Judgments which prove that which has proved that
inequality anywhere will never be tolerated and therefore Judgments of these cases have
established new landmarks in the concept of equality.1314

Creamy Layer

Critics of reservation policies in India have claimed that they are inequitable because they make
available valuable educational opportunities mainly to well-to-do applicants - the creamy layer-
rather than to more needy members of disadvantaged groups. Thus it is argued that reservations
for SC and ST applicants increase inequalities within these groups and reduce educational
opportunities for generalentry applicants from other groups who may be worse off than the SC
and ST beneficiary. 15

The creamy layer is taken as General Category in any competitive exam. They are not eligible
for government sponsored benefits in education and employment. The OBCs specifically come
in this layer.16

The term creamy layer was first coined by Justice Krishna Iyer in 1975 in State of Kerala v. NM
Thomas case, wherein he observed that “benefits of the reservation shall be snatched away by the
top creamy layer of the backward class, thus leaving the weakest among the weak and leaving
the fortunate players to consume the whole cake”.

In Indra Sawhney v Union of India judgment, 1992 laid down the limits of the state’s powers: it
upheld the ceiling of 50 per cent quotas, emphasized the concept of “social backwardness”, and
prescribed 11 indicators to ascertain backwardness. The nine-Judge Bench judgment also
established the concept of qualitative exclusion, such as “creamy layer”. The creamy layer is

13
Reservation and Principle of Equality by Author : sujay_ilnuPublished on December 28, 2010
URL- http://www.legalservicesindia.com/article/article/reservation-&-principle-of-equality-479-1.html
14
D.V. Bakshi v. Union of India AIR 1993 (3) SCC 663 and Air India v. Nargesh Mirza 1981
AIR 1829, 1982 SCR (1) 438
15
Author(s): Thomas E. Weisskopf, Impact of Reservation on Admissions to Higher Education in India,
URL- https://www.jstor.org/stable/pdf/4415591.pdf
16
What is the difference between OBC- creamy layer and OBC- non creamy layer? By Jebasingh Israel
URL- https://www.quora.com/What-is-the-difference-between-OBC-creamy-layer-and-OBC-non-creamy-layer

10 | P a g e Constitutional Framework for Reservation in India

only applicable in the case of Other Backward Castes and not applicable on another group like
SC or ST. The creamy layer criteria were introduced at Rs 1 lakh in 1993, and revised to Rs 2.5
lakh in 2004, Rs 4.5 lakh in 2008 and Rs 6 lakh in 2013. In October 2015, National Commission
for Backward Classes proposed that a person belonging to OBC with an annual family income of
up to Rs 15 lakh should be considered as a minimum ceiling for OBC. NCBC also
recommended sub-division of OBCs into 'backward', 'more backward' and 'extremely backward'
blocks and divide 27% quota amongst them in proportion to their population, to ensure that
stronger OBCs don't corner the quota benefits.

The Court held that the 1931 census could not be a determinative factor for identifying the OBCs
for the purpose of providing reservation. ".

On 29 March 2007, the Supreme Court of India, as an interim measure, stayed the law providing
for 27 percent reservation for Other Backward Classes in educational institutions like IITs and
IIMs. This was done in response to a public interest litigation — Ashoka Kumar Thakur vs. The
Union of India. In this landmark case, decisions of Justice Ravindran smelling the dangers from
the present trend on the reservation had rightly opined that when more people aspire for
backwardness instead of forwardness, the Country itself stagnates. The court also observed,
"Reservation cannot be permanent and appear to perpetuate backwardness.” 17

It is quite impossible to declare Reservation policy as good or bad as those benefitting from it
would always support it and declare it to be good while those who are being at a loss because of
the system would always curse it and declare it to be bad. But what matters the most is not that
whether the reservation policy is good or bad instead what matters is the idea and the reason
behind its adoption. If that reason is losing its essence, then, of course, the reservation policy
would gradually turn out to be bad.

On 10 April 2008 the Supreme Court of India upheld the government's initiative of 27% OBC
quotas in government-funded institutions. The Court has categorically reiterated its prior stand
that those considered part of the "Creamy layer" should be excluded by government-funded

17
Le Parisien, Other Backward Classes,
URL- http://dictionnaire.sensagent.leparisien.fr/OTHER%20BACKWARD%20CLASS/en-en/

11 | P a g e Constitutional Framework for Reservation in India

institutions and by private institutions from the scope of the reservation policy. The verdict
produced mixed reactions from supporting and opposing quarters.

For these possible reasons, the Creamy Layer has been excluded from the list of Scheduled
Castes, Scheduled Tribes and OBC after the landmark Mandal Case.

Several criteria to identify the portion of the population comprising the "creamy layer" have been
recommended, including the following:

• Children of those with family income above ₹ 250,000 a year, and then ₹ 450,000 a year as
of October 2008 and now ₹ 600,000 a year, should be considered creamy layer, and
excluded from the reservation quota.

• Children of doctors, engineers, chartered accountants, actors, consultants, media

professionals, writers, bureaucrats, defense officers of colonel and equivalent rank or
higher, high court and Supreme Court judges, all central and state government Class A and
B officials should be excluded.

• The Court has requested Parliament to exclude the children of MPs and MLAs as well.18

Jat Reservation Quota case:

The Jat community has been protesting in Haryana for reservation in jobs and colleges under the
Other Backward Classes (OBC) quota. The community is demanding to be declared OBC (other
backward class), which will help them secure the 27 percent OBC reservation in government
jobs. The Special Backward Class quota offered by the Khattar government, on the basis of their
economic status, has been rejected by the Jats.19

“Just because your community was backward in the past doesn't mean it can be considered
backward forever.” That’s what the Supreme Court concluded in a significant order striking
down the previous government's decision to give another Backward Class status to Jats in North
India. The apex court's Jat quota decision was received with shock in several states with
significant Jat populations, since it means the community will no longer be given the benefit of
18
Infogalactic, Other Backward Class URL- https://infogalactic.com/info/Other_Backward_Class
19
Indiatoday.in Education, Jat Agitation URL- http://indiatoday.intoday.in/education/story/jat-
agitation/1/604023.html

12 | P a g e Constitutional Framework for Reservation in India

reservations, but it is of a piece with the general approach the Supreme Court has had to
reservations over the years.20

Here’s the one paragraph of the judgment which explains what’s wrong with this reservation:

"An affirmative action policy that keeps in mind only historical injustice would certainly result in
under-protection of the most deserving backward class of citizens, which is constitutionally
mandated. It is the identification of these new emerging groups that must engage the attention of
the State and the constitutional power and duty must be concentrated to discover such groups
rather than to enable groups of citizens to recover “lost ground” in claiming preference and
benefits on the basis of historical prejudice."

Therefore, with time the courts keep to confining the scope of reservation and removing the
undeserving caste for it. The creamy layer should be shed off from the reservation system for the
proper upliftment of the society.

20
Scroll.in, The Reservation Pies, URL- https://scroll.in/article/714288/the-one-paragraph-from-the-supreme-
courts-jat-quota-judgment-that-slams-competitive-backwardness

13 | P a g e Constitutional Framework for Reservation in India

Chapter 3: Reservation & the Constitution

Reservation Policy
‘After independence, the reservation policy became more explicit and clear as it had the support
of Indian Constitution. The concept of SC, ST and OBC is required to be stated as these
communities are the prime movers and beneficiaries of reservation policy.’21

India’s affirmative action policy, more popularly known as “Reservation Policy”, is authored by
the provisions in the Indian Constitution which were adopted in 1950, though its initiation at the
country level dates back to the early 1930s.22

Reservation Policy in India is a process of reserving a certain percentage of seats (maximum

50%) for a certain class such as Scheduled Castes, Scheduled Tribes, and Backward
classes.23The reservation policy is operative mainly in three spheres: government jobs, admission
to public educational institutions and seats in central, state and local legislatures and bodies.24

The Tamil Nadu government is known for making it a controversial issue on sensitive issues like
reservation policy. It had appointed a Commission, the Ambasankar Commission, to look into
the problems faced by the backward classes. The Commission also submitted a report to the
government which was neither published nor accepted possibly because it reduces the percentage
of reservation for backward classes and also the list of backward classes to one-third
(Manickavasagam and Alagappan, 1998).

The Kaka Sahaeb Kalelkar Commission was appointed in 1953:

The major recommendations of the Commission were:

(i) Reservation of 27 percent jobs for OBCs in Central Government institutions and
also in educational institutions;
(ii) 27 per cent reservation for promotion at all levels;

21
Highlights on Reservation Policy in India, Article by Bhimasen Hantal
URL- http://www.yourarticlelibrary.com/law/highlights-on-reservation-policy-in-india/39793/
22
Research paper- A CRITICAL ANALYSIS OF THE IMPACT OF RESERVATION AS A POLICY OF EMPOWERMENT OF
DALITS, URL- http://shodhganga.inflibnet.ac.in/bitstream/10603/37478/12/12_chapter%205.pdf
23
All About Reservation Policy In India URL- https://blog.ipleaders.in/reservation-policy-india/
24
Reservation in Employment, Education, and Legislature, Written by: Sukhadeo Thorat and Chittanjan Senapati,
URL- http://www.dalitstudies.org.in/download/wp/0705.pdF

14 | P a g e Constitutional Framework for Reservation in India

 (iii) Carryover period of three years for unfilled reserved quota; and
(iv) Age relaxation for OBCs should be similar to that of the SCs and STs.

After independence, the reservation policy became more explicit and clear as it had the support
of Indian Constitution. There is no end to the reservation policy in India; it is going to stay
forever. India is a democracy and for the voting and to get the votes and to develop vote banks,
political business houses will keep the Ghost of Reservation alive forever.25

Advantages and Disadvantages

Advantages:

a) Reservations are a political necessity in India. 26

b) The advantage of these reservations is that they allow these backward class a chance at
improving their lives and status in society and getting meaningful employment. They
also get representation in various aspects of society and decision-making, something
that has been denied to them for a long time. 27

c) Although Reservation schemes do undermine the quality of education but still

Affirmative Action has helped many if not everyone from underprivileged and/or
under-represented communities to grow and occupy top positions in the world’s leading
industries. 28

Disadvantages:

Efforts need to be made to dilute this system as it has many demerits which are listed below:

a) It perpetuates the caste system instead of eliminating it.

25
India – Reservation policy – The Problem and Solution
URL- http://www.realityviews.in/2010/03/india-reservation-policy-problem-and.html
26
Supra 1
27
Reservation in India Advantages and Disadvantages URL- https://www.enotes.com/homework-
help/what-advantages-disadvantages-reservation-sts-scs-477926
28
Supra 1

15 | P a g e Constitutional Framework for Reservation in India

 b) It is anti-national, anti-secular and anti-progressive because it creates gaps in society,
promotes differences instead of removing the caste reservation which is discriminatory
and it does not reward merit or efficiency rep.

c) Reservation is being used for extending benefits in education, public service and
representations based solely on the caste status. Assuming that certain castes are
backward is fallacious and incorrect. Caste should not be the only ground for social
backwardness; there are many other criteria for defining backwardness which needs to
be applied.

d) Reservation thwarts growth and development; it stands in the way of allegiance to the
sovereign democratic republic.

e) The “creamy layer” takes on the benefits of caste based reservation; the latter therefore
promotes further inequalities instead of removing them.

f) It causes an entire community to be tagged as backward regardless of whether there are

inequalities within the particular community, as is often the case.

g) Underprivileged, weaker sections of society do not necessarily belong to any particular

caste; economic inequalities are not addressed through a caste based reservation
system. Caste is not the only disadvantageous factor in society; reservation should not
be at the cost of social restructuring.

h) Such reservation systems reduce the motivation to perform to the best of one’s ability
for backward as well as non-backward classes.

The disadvantage of the reservation is that it suppresses meritocracy that is the availability of
options to the most capable and deserving person. An example may be taken from the field of
education. The top engineering colleges in India conduct an entrance test to admit students.
However because of the reservation system, the reserved seats go to candidates who scored less
than half the marks as compared to general candidates. This also means that the reserved

16 | P a g e Constitutional Framework for Reservation in India

candidates are less capable than their peers in the classroom and hence almost always play the
role of second-class citizens. 29

Constitutional Provisions
To achieve the objective of "Equality" with many facets, special provisions have been made in
the Constitution of India. The Constitution provides certain special provisions to the SCs and
STs to protect their educational and economic interest. These provisions are known as ‘protective
discrimination policy’. They are related to (i) political reservations (Articles 330 and 332); (ii)
reservation of seats in educational institutions (Articles 15(4), 29, 46); and (iii) reservation of
government jobs (Articles 16(4), 320(4), 333 and 335). The Constitution provides equality
before the law and positive legal measures against the disabilities based on birth (Articles 15(2)
(3); 29(2), 244 and 371(a)). By the various acts of parliament, the provisions received legal
status.

(i) Political Reservation- (Articles 330 and 332)

Articles 330 and 332 respectively make the provision for the reservation of seats of
Scheduled Castes and Scheduled Tribes in the House of the Parliament and
Legislative Assemblies of the States. The number of reserved seats in the States and
Union Territory for these People depends upon the population of that particular State
and Union Territory. The makers of the Constitution felt while framing it that most of
the SC’s and ST’s are deprived socially and for their welfare this provision should
carry further till they attain full development.

(ii) Educational Reservation- (Articles 15(4), 29, and 46)

These articles ensure the Educational Reservation to the SC’s, ST’s & Socially and
Economically Backward Classes and make special provisions for their advancement.
Article 29 protects the interest of the minorities by making a provision against the
discrimination on the basis of linguistic, script, or culture. It mandates no
discrimination should be there on the basis of caste, religion, race, language or any of
them. Article 46 which is a DPSP also promotes the special care to the weaker
sections of the people with educational and economic interests. ." Articles 330, 332,
335, 338 to 342 and the entire Fifth and Sixth Schedules of the Constitution deal with
special provisions for the implementation of the objectives set forth in Article 46.

29
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17 | P a g e Constitutional Framework for Reservation in India

 (iii) Employment Quota/Reservation- (Articles 16(4), 320(4), 333, and 335)
Article16 is “an enabling provision” conferring a discretionary power on the state for
making any provision or reservation of appointments or posts in favor of any
backward class of citizens which, in the opinion of the state, is not adequately
represented in the service of the state.30 The representation of the Anglo-Indian
community is also mentioned in the constitution in the Legislation Assemblies of the
State (in Article 333). Article 335 talks about the claims of the members of Scheduled
Castes and Scheduled Tribes that there should be the maintenance of efficiency of
administration, with the consideration of making of appointments to services and
posts related to the affairs of the Union or a State.

(iv) Positive measures against the disabilities based on birth- (Articles 15(2)(3);
29(2), 244 and 371(a)
These articles provide the equality to the socio-economic backward classes or
scheduled castes and scheduled tribes to give them equal protection of the law for
their betterment and are against the discrimination on the grounds of religion, castes,
race, sex or place of birth. Article 15(2) gives the backward or disabled people to
access to any shops, public restaurants, hotels, place of public entertainment and to
use the wells, bathing ghats, roads and public resorts maintained wholly or partially
out of State funds. Sub-clause (3) of Article 15 gives the State the responsibility to
make special provisions for women and children. Article 244 discussed the schedule
5 and 6 of the Indian Constitution. The provisions related to the Administration of
Scheduled areas and tribes except for States of Assam, Meghalaya, Tripura and
Mizoram are made in schedule 5. The provisions for autonomous regions (States of
Assam, Meghalaya, Tripura and Mizoram) which are covered in schedule 6 are also
there for the Administration of these tribal areas with the help of various acts like
PESA Panchayats (Extension to the Scheduled Areas) Act, 1996, etc. Article 371 of
the Indian Constitution ensures to provide the special provisions with respect to
different states, i.e. the States of Maharashtra and Gujarat, State of Nagaland, State of
Assam, State of Manipur, and the State of Andhra Pradesh (or Telangana).

30
Mohan Kumar Singhania v. Union of India

18 | P a g e Constitutional Framework for Reservation in India

Chapter 4: Reservation in Different Areas and their Impacts

Education: The very important sphere of reservation is in the education sector. Article 15(4)
empowers the State to make special provisions for the advancement of the SC/STs. Under this
provision, the State has reserved seats for SC/ST students in educational institutions: in colleges
and universities, including technical, engineering and medical colleges run by the central and
state governments and government aided educational institutions. These provisions are supported
by a number of financial schemes which include scholarships, special hostels for SC/ST students,
concession in fees, grants for books, remedial coaching, etc.31

Impacts:

1. Division of Society-

We are a secular country and equality is a must for secularism to survive. Dividing the
population on the basis of castes and religions has never done any good for the nation as a
whole. Instead of uniting our country, we are segmenting it into fragments. As per the
quota system, Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes
(OBC) are the primary beneficiaries of the reservation policies under the Constitution.
Their respective quotas in the education system are 15%, 7.5% and 27%.

2. Discourages Performers-

Students who put in the best of their efforts to make it in the merit are disheartened if they
fail to get an admission in a good college due to a reservation. They get discouraged and
depressed and such situations lead to frustration and suicidal attempts. Moreover, the
reputation of the best institutes in the nation has been deteriorating due to admissions of
candidates based on a quota and not merit. The quality of professionals that IITs and IIMs
are producing now is not up to the standards they have created themselves.

3. Used For Benefits-

People don’t wish to work and study as they want to avail benefits of their caste. And hence,
they can never develop and prosper leaving the backward classes where there were

31
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19 | P a g e Constitutional Framework for Reservation in India

 without any improvement. People also get fake certificates made to enjoy the benefits of
reservation. Even politicians use caste as an effective tool to earn more votes. They divide
the society for their own good into vote banks.32

4. Migration of Merits-

When good students don’t find admissions in good colleges and good jobs due to reserve
seats, they prefer relocating themselves to other countries with better opportunities to
perform and make a better living totally based on their performance levels. This has forced
many fertile brains to leave the country and settle abroad.

There are various other impacts of this system that have affected the lives and careers of millions
of people across the country. It’s high time and this needs attention and amendment. With time
the society and the mindset of the people have also changed and to match up to the present needs
to need to incorporate changes that can bring better results.

In Elected bodies: The third most important sphere of reservation is representation in the central
and state legislatures. A legislative reservation is one of the specific and mandatory
constitutional provisions dedicated to SC/STs. Under Articles 330, 332 and 334 of the
Constitution, seats are reserved for SC/STs in the central and state legislatures in direct
proportion to their population size. Similarly, reservation is provided in local level bodies at the
district, taluk and village levels. Constituencies (for the seat in parliament and state assemblies)
are reserved for SC/STs in proportion to their share of the population. Thus, at the all India level,
out of the total number of parliamentary seats, 14 per cent and 7 per cent of constituencies (or
seats) are earmarked for SC/STs respectively. Only the person from SC/ST community can
contest from these reserved constituencies. The reservation has been extended up to the year
2000 AD by an amendment to the Constitution in 1990. Of the total strength of 543, in Lok
Sabha, 79 seats are served for the Scheduled Castes and 40 for the Scheduled Tribes. 33
Parliament adopted the Constitution (109th amendment) Bill, 2009 for the same.

32
Moonmicrosystem, Impact of Reservation on Education System,
URL- https://moonmicrosystem1.wordpress.com/tag/effect-of-reservation-on-education/
33
Parliament of India, URL- http://www.parliamentofindia.nic.in/lsdeb/ls13/ses1/1927109903.htm

20 | P a g e Constitutional Framework for Reservation in India

The Women’s Reservation Bill [The Constitution (108th Amendment) Bill] is one of the longest
pending legislations in the Indian Parliament. The Bill seeks to reserve 33.33 percent seats in the
Lok Sabha or the Lower House of Indian Parliament and in the State Legislative Assemblies for
women, in accordance with the 73rd and 74th Constitutional Amendments which reserved the
same percentage of seats for women in rural and urban local bodies respectively. The Bill has
been introduced in the Indian Parliament several times since its initial launch in 1996, but
however the status of the bill remains undecided primarily due to lack of political consensus.
After a long battle, the Bill was passed by the Rajya Sabha (the Upper House of Indian
Parliament) on 9th March 2010 amidst stiff resistance from some political parties. It seeks to
reserve one-third of all seats for women in the Lok Sabha and the State Legislative Assemblies.34

Impacts:

 In the case of political reservation, two problems continue to receive attention. Firstly,
the Government has been delaying the updating of the percentage share of seats for
SC/STs in the central and state legislatures as per the recent changes in population
figures.
 Another issue is that the activities of SC/ST representatives are presumably microscopic
and concentrated on matters that affect these groups only. Also, their effectiveness in
representing the interests of the marginalized groups is most evident in their dealings on
matters directly related to their welfare.35

In Employment: Article 16(A) permits reservation in favors of backward castes and in

pursuance of this provision, the Government has made are servation for SC/ST in proportion to
their share of the population. There is also reservation in promotion of employed persons. The
government services generally include government civil service, public sector undertakings,
statutory and semi-government bodies, voluntary agencies, etc. which are under the control of
the Government or receiving grant-in-aid. However, there are also certain services at the central
level that do not come within the purview of reservation policy: these prominently include the
defense and the judiciary. Reservation policy is accompanied by an array of other special

34
Wikigender, The Women’s Reservation Bill, URL- http://www.wikigender.org/wiki/india-the-womens-
reservation-bill/
35
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21 | P a g e Constitutional Framework for Reservation in India

provisions designed to facilitate and enhance the probability of the reserved groups to compete
for government jobs. These include: relaxation of minimum age for entry into the service,
relaxation in minimum standard of suitability within reasonable limits (subject to required
minimum qualification), relaxation in fee, and provision for pre-examination training, separate
interview for SC/ST persons, provision of expert from SC/ST background on selection
committee and others.

Impacts:

 During the last fifty years or so, the share of SC/STs in the government services has
improved quite significantly. There are, however, variations between different types of
jobs. Generally, reservation is fairly proportionate to the required percentage in group C
and D jobs, but unsatisfactory in the case of A and B category jobs. For effective
implementation of reservation policy in jobs, the Government has tried to developed
some safeguards which include maintenance of Model Roaster for identifying posts
under reservation, separate interview of SC/ST candidates, special office with liaison
officers to oversee Reservation policy in each office, representatives of SC/STs on
selection boards, banning de-reservation of reserved posts, banning the full exchange of
posts with general category candidates if SC/ST category are not available and other
measures.
 The slow pace of the process of achieving reservation is a major impediment to fulfilling
reservation quotas. Implementation of reservations at the practical level faces immense
resistance from various spheres. This is reflected in the delay in making provisions, in
filling up the posts and resorting to courts for implementation. The magnitude of
resistance is much intense in higher-grade jobs and more so, in technical educational
institutions. It is less in lower categories of jobs and in admissions 180 to institutions
other than technical. Delay and resistance in provision making and in filling up posts are
particularly prevalent in the case of State-aided autonomous institutions which are
required to get the approval of their decision-making bodies for reservation.36

36
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22 | P a g e Constitutional Framework for Reservation in India

Chapter 4: Welfare of SCs, STs and OBCs

There are some exceptions made in the Constitution that is in favor of four classes for certain
stated purposes, with or without conditions —

(i) women and children in general, i.e. belonging to all social groups and all the strata of
the society regardless `of class, caste, race, religion etc. [Article 15 (3)], obviously for
their all-around welfare and development
(ii) the socially and educationally backward classes and [for their advancement, Article
15(4)]
(iii) the Scheduled Castes and the Scheduled Tribes
(iv) the `weaker sections', which, in particular, include the Scheduled Castes and the
Scheduled Tribes for promoting the special care their educational and economic
interests and to protect them from social injustice and all forms of exploitation
[Article 46].37

The Constitution provides for the National Commission for Scheduled Castes and the National
Commission for Scheduled Tribes which have wide-ranging powers and functions in regard to
matters pertaining to Scheduled Castes and Scheduled Tribes respectively. The Government has
also set up the National Commission for Other Backward Classes. Besides, there is a Committee
of Parliament on the Welfare of Scheduled Castes/Scheduled Tribes. 38

Committee of Parliament on Welfare of SCs /STs is another body (comprising of SC/ST

Members of Parliament) entrusted with the task of examining the progress regarding the
representation of SC/STs. It attempts to make suitable recommendations for effective
implementation of policies and programs.

It is not the `upper' castes or the social groups, but the poor individuals in the groups who should
be entitled to reservation. As has been pointed out earlier, the reservation has been provided in
the Constitution for `classes', not individuals. If the individuals have to be provided with a
reservation on the economic criterion, then those satisfying the said criterion and belonging to
37
The Hindu, The Constitution and Reservation,
URL- http://www.thehindu.com/2003/07/02/stories/2003070201231000.htm
38
Persmin Government, Reservation of SC, ST, and OBC,
URL- http://persmin.gov.in/DOPT/Brochure_Reservation_SCSTBackward/Ch-01_2014.pdf

23 | P a g e Constitutional Framework for Reservation in India

any caste and social group, irrespective of any distinction will be entitled to it, including the
individuals belonging to the backward classes and the Scheduled Castes and the Scheduled
Tribes. Such reservation will fall in the general category and all will be entitled to it whether
there is reservation on other grounds or not.39

But, over time, there has been a positive improvement in the human development of SC/STs. The
positive changes are reflected in the aggregate indicators of human development – income level,
employment, social needs like education and health, and ultimately, in poverty.

However, it needs to be recognized that, although there has been some improvement as reflected
in some of these indicators, improvement in relation to non-SC/ST is low, or lower than the rate
which is required to bridge the gap between SC/ST and Non-SC/ST groups. Hence, the
disparities between SC/STs and non-SC/ST have not been reduced substantially so as to bridge
the gap to a reasonable level. Consequently, the socially marginalized groups of SC/STs lag
behind the non-SC/ST section of the Indian population with respect to attaining the desirable
level in human development.40

39
Supra 36
40
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24 | P a g e Constitutional Framework for Reservation in India

Conclusion

From the above data it can be concluded that the reservation in India plays an important role for
the upliftment of the SC’s, ST’s, socially & economically backward classes. And many steps and
provisions are made by the government of India regarding the reservation policies after India got
independent. But as time passed there was the huge upliftment in the standard of living of the
SC’s, ST’s and OBC while the policies and the provisions remained as similar to that time. Now
it can be seen that these backward classes reach to the point of equality where they are sufficient
without any type of reservation, then also are taking the benefit of the reservation policies.
According to me the caste based reservation should be taken into secondary consideration taking
the first preference to the economic based reservation as per the survey it has been noticed that
many people in India keeping aside to the SC’s, ST’s & OBC are also deprived of the basic
necessity like employment opportunity, poverty and scarcity of resources. All the benefits are
grabbed by these so called backward classes leaving behind the deserved ones.

Although there are some steps taken by the government like the Ram Nandan Committee
(creamy layer) is made that lead to the betterment of the society but then also it was just for the
OBC, leaving behind the SCs& ST’s.

There are numerous valid reasons for enforcing creamy layer restriction on the reservation for
scheduled castes category and scheduled tribes category, chief among them being the upliftment
of the poor and deprived people in the scheduled castes category and scheduled tribes category
rather than the rich people in those categories. The reservations for SC, ST are not for their
economic benefits but for their social upliftment, and because of which the state cannot impose
creamy layer concept in the case of SC &ST, because it is not just their economic upliftment
which the state is trying to achieve but mainly their social upliftment. That is why imposing the
creamy layer on the SC &ST will defeat the sole purpose of social upliftment and defeats the
provisions of the constitution. SC, ST can enjoy financial assistance provided by reservation
irrespective of their financial status.

Therefore, the socio-economic level should be taken directly proportional for the overall
upliftment and the welfare of the backward as well as the general classes in the society.

25 | P a g e Constitutional Framework for Reservation in India