INTRODUCTION

INTRODUCTION

The fundamental rights are given by our Constitution. These rights have a dual aspect. From one point of view, they confer justifiable rights on the people which can be enforced through the courts. From another point of view, the fundamental rights constitute restrictions and limitations on governmental action, whether it is taken by the Centre, or a State or a local government.The constitution of India guarantees the Right to Equality through Articles 14 to 18. Art. 14 outlaws discrimination in a general way and guarantees equality before law to all persons. Its aims is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. Classification to be should fulfill the follwing two tests.1. it should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped together in the class from others left out of it.2. The differentia adopted as the basis of classification must have a rational or reasonable relationship to the object sought to be achieved by the statute in question. So, "Reservation" is a term in Indian law used to describe the government policy of reserving a set percentage of seats in many aspects of Indian society, including education, and jobs in government institutes and organizations. Reservation is intended to increase social diversity in campuses and workplaces by lowering entry criteria and requiring quotas for certain social groups that are deemed under-represented. These places are set aside for members of "socially and educationally backward classes" or for the "scheduled castes and the scheduled tribes"--referred to as "untouchables" before India's independence. The word reservation has attained a particular legal significance in matters relating to public employment. The concept is founded on separating individuals or groups having certain characteristics (pertaining to backwardness as per Articles 15(4) & 16(4)) from the general category of candidates and conferring on them the benefit of special treatment. It is discrimination made in favour of the backward classes vis--vis the citizens in general and has been referred to as Compensatory discrimination or Positive Discrimination.

The reservation policy is also extended for the Scheduled Castes and Scheduled Tribes for representation in the Parliament of India. The central government of India reserves 27% of higher education[1], and individual states may legislate further reservations. Reservation in most states is at 50%, the maximum amount declared constitutional by the supreme court[2], but certain Indian states like Rajasthan have proposed a 68% reservation which includes a 14% reservation for forward castes. Purpose - Reservations are intended to increase the social diversity in campuses and workplaces by lowering the entry criteria for certain identifiable groups that are grossly under-represented in proportion to their numbers in the general population. Caste is the most used criteria to identify under-represented groups. However there are other identifiable criteria for under-representationgender (women are under represented), state of domicile (North Eastern States, as Bihar and Uttar Pradesh are under-represented), rural people, etc. as revealed by the Government of India sponsored National Family Health and National Sample surveys.

The underlying theory is that the under-representation of the identifiable groups is a legacy of the Indian caste system. After India gained independence, the Constitution of India listed some erstwhile groups as Scheduled Castes (SC) and Scheduled Tribes (ST). The framers of the Constitution believed that, due to the caste system, SCs and the STs were historically oppressed and denied respect and equal opportunity in Indian society and were thus under-represented in nation-building activities. The Constitution laid down 15% and 7.5% of vacancies to government aided educational institutes and for jobs in the government/public sector, as reserved quota for the SC and ST candidates respectively for a period of five years, after which the situation was to be reviewed. This period was routinely extended by the following governments and the Indian Parliament, and no revisions were undertaken.

Later, reservations were introduced for other sections as well. The Supreme Court ruling that reservations cannot exceed 50% (which it judged would violate equal access guaranteed by the Constitution) has put a cap on reservations. However, there are state laws that exceed this 50% limit and these are under litigation in the Supreme Court. For example, the caste-based reservation fraction stands at 69% and is applicable to about 87% of the population in the state of Tamil Nadu (see section on Tamil Nadu below).

CONSTITUTION MANDATE

The provisions of reservation is covered by Articles 15 and 16 of the Constitution. According to Oxford dictionary, the word discrimination used in Article 15 means to make an adverse distinction with regard to distinguish unfavourably from others. There can not be discrimination against one person without corresponding discrimination in favour of someone else. As a result of 15 and 16, several states have implemented programmes of compensatory or protective discrimination. Each such program is a departure from the equality norm, but this is permissible as it is for the benefit of the backward sections. Such programs must be designed and worked in a manner conducive to the ultimate building up of an egalitarian and non discriminating society. Reservation has been dealt with under Article 15(3), 15(4), 15(5), 16(4), 16(4-A) and16(4-B) of the Constitution. Article 15(1) and (2) talks of prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 16(1) and 16(2) talks of equality in matters of public employment. Article 16(4), (4-A), 4-B) are exception to them. The Constitution of India has provided, among other various protections and safeguards, safeguards for Public employment to the persons belonging to the Scheduled Castes and Scheduled Tribes, keeping in view the discrimination and disabilities suffered by these classes to catch up and compete successfully with the more fortunate ones in the matter of securing public employment. Specific provisions for reservations in services in favour of the members of Scheduled Castes and Scheduled Tribes have been made as follows in the Constitution of India:-

No discrimination on ground of religion etc.

Art 15(1) specifically bars the state from discriminating against any citizen of India on grounds only of religion, race, caste, sex, place of birth or any of them.Art.15(2) prohibits subjection of a citizen to any disability, liability, restriction or condition on ground only of religion, race, caste, sex or place of birth with regard to access to shops, public restaurants, hotels and places of entertainment, or the house of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of state funds or dedicated to the use of general public. Art 15(1) expresses a particular application of the general principle of equality embodied in Art 14.The combined effect of Art 14 and 15 is not that the state can pass unequal laws, but if it dies pass unequal laws, the inequality must be based on some reasonable ground only and religion, race, caste, sex, place of birth can not be a reasonable ground for discrimination. The word discrimination in Art.15(1) involves an element of unfavorable bias. Article 15(3)

Article 15(3) provides that Nothing in this articles shall prevent the state from making any special provisions for women and children.

This Article recognizes the fact that the women in India have been socially and economically handicapped for centuries and as a result thereof, they cannot fully participate in the socio-economic activities of the nation on a footing of equality. The purpose of Article 15(3) is to eliminate socio-economic backwardness of women and to empower them in such a manner as to bring about effective equality between men and women. Its object to strengthen and improve the status of women. Article 15(3) thus relieves the state from the bondage of article 15(1) and to enable it to make special provisions for women. The scope of Article 15(3) is wide enough to cover the entire range of state activity including that of employment. However only such provisions can be made in favour of women and children under Article 15(3) as are reasonable and which do not altogether obliterate the constitutional gurantee mentioned in article 15(2). The operation of article 15(3) can be illustrated by the following few Cases:

Yusuf Abdul Aziz v. state of maharhatra

In this case it was challenged that Section 497 of I.P.C. under which the offnce of adultery can be committed only by a male and not by a female who cannot even be punished as an abettor is violative of article 14.The sc held that as this provision makes a special provision for women, it is saved by article 15(3).Revathi v. Union of India In this case it was held that clause (1) to (3) of Article 15, read together would imply state can discriminate in favour of women against men, but cannot discriminate in favour of men against women.Vijay lakshmi. V. p u

In this provision for reservation of posts of principal and teachers for women in colleges for girls was upheld as not violative of articles 14,15 and 16.Govt. of a.p v. p.b vijay kumar

The sc has ruled in this case that under Article 15(3), the state may fix a quota for appointment of women in government service. Also a rule saying that all other things being equal, preference would be given to women to the extent of 30% of the posts was held valid with reference to article 15(3).Special provision for women : this expression refers to the special provisions which the state makes to improve womens participation in all activities under the supervision and control of the state and it can be in the form of either affirmative action or reservation. The provision of giving preference to women amounts o affirmative action. Thus Article 15(3) includes the power to make reservations for women as well as taking affirmative action. Article 15(4)

Article 15 (4) provides that Nothing in this article shall prevent the state from making special provision for the advancement of any socially and educationally backward class of citizens or for the scheduled castes or schedule tribes.

Clause (4)it was added by the constitution (First Amendment) Act, 1951, as a result of the decision of the supreme court in State of Madras v. Champakram Dorairajan,

In that case the court struck down the communal G.O. OF THE Madras Govt. which, with the object to help the backward classes, had fixed the proportion of students of each community that could be admitted into the state medical and engineering colleges. After this amendment clause (4) enables the state to make special provisions for the advancement of socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. Such provisions include reservation or quotas and can be made in the exercise of executive powers without any legislative support.Under Article 15(4) in innumerable cases, the reservation of seats for scheduled castes, Scheduled tribes and backward classes in engineering, medical and other technological colleges has been upheld. Reservations are possible under Article 15(4) for the advancement of any backward class of citizens or for scheduled castes, s t. Article15(5)

2008The Supreme Court of India on April 10 2008, upheld the Government's move for initiating 27% OBC quotas in Government funded institutions. The Court has categorically reiterated its prior stand that "Creamy Layer" should be excluded from the ambit of reservation policy. The Supreme Court avoided answering the question whether reservations can be made in private institutions, stating that the question will be decided only as and when a law is made making reservations in private institutions. The verdict produced mixed reactions from supporting and opposing quarters.

Ashok kumar 2008 Whether Ninety-Third Amendment of the Constitution is against the basic structure of the Constitution Held, No, the Constitution (Ninety-Third Amendment) Act, 2005 does not violate the basic structure of the Constitution so far as it relates to the state maintained institutions and aided educational institutions Incase of private unaided educational institutions, the issue left open to be decided in an appropriate case Clause (5) of Article 15 of the Constitution inserted by the amending act is an enabling provision which states that nothing in Article 15 or in Sub-clause (g) of Clause (1) of Article 19 would prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the State Minority educational institutions referred to in Clause (1) of Article 30 to be excluded Act 5 of 2007 was enacted to provide reservation of seats for Scheduled Castes, Scheduled Tribes and SEBCs of citizens in Central Educational Institutions

Held, Article 15(5) constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory Both Article 15(4) and 15(5) are enabling provisions and operate in different areasArticle 16(1): There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Article 16(4): Article 16 provides for equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, Nevertheless, nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. There have been two Constitution Amendments incorporated in Article 16(4), they are:-

Article 16 (4-A) : Nothing in this article shall prevent the state from making any provision for reservation in matters of promotions, with consequential seniority, to any class or classes of posts in services under the state in favour of SCs/STs which in opinion of state, are not adequate by represented in the services under the state. The 77th Amendment to the Constitution has been brought into effect permitting reservation in promotion to the Scheduled Castes and Scheduled Tribes.

Thus, by amending the Constitution, the Parliament has removed the base as interpreted by Supreme Court in Indira Sawhney that the appointment does not include promotion. Article 16(4A) thus revives the interpretation put on Article 16. Rule of reservation can apply not only to initial recruitments but also to promotions. But no promotion can be made in promotion posts for the OBCs.

The Supreme Court has emphasized that Article 16(4A) ought to be applied in such a manner that a balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes as well as for the other members of the society.

Article 16 (4-B): Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. The Constitution (Eighty- First Amendment) Act, 2000 has added Article 16(4B) to the Constitution. The Amendment envisages that the unfilled reserved vacancies are to be carried forward to the subsequent years and these vacancies are to be treated as distinct and separate from the current vacancies during any year. The rule of 50% reservation laid down by the Supreme Court is to be applied only to normal vacancies. This means that the unfilled reserved vacancies can be carried forward from year to year without any limit, and are to be filled separately from the normal vacancies. This Amendment also modifies the proposition laid down by the Supreme Court in Indira Sawhney.Article 335: This article provides that the claims of the members of the SCs and STs shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments in services and posts in connection with the affairs of the Union or of a State.

RESERVATION FOR BACKWARD CLASSES IN INDIAARTICLE 16(4):- This clause (4) expressly provides for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state is not adequately represented in the services under the state. Here the term state denotes both Central and state governments and their instrumentalities.

The power conferred on the State can only be exercised in favour of a backward class and therefore, whether a particular class of citizens is backward, is an objective factor to be determined by the state.

It was held in Triloki Nath v. State of J & K, [1] that State determination must be justiciable and may be challenged if it is based on irrelevant considerations.

In Mohan Kumar Singhania v. Union of India, [2] explaining the nature of Article 16(4) the Supreme Court has stated that it is an enabling provision conferring a discretionary power on the state for making any provision or reservation of any backward class of citizens which in the opinion of the state is not adequately represented in the service of the state. Article 16(4) neither imposes any constitutional duty nor confers any Fundamental Right on any one for claiming reservation. The state government takes the total population of the backward class and their representation in the state services and after doing the necessary exercise makes the reservation and provides the percentage of reservation for the posts, then the percentage has to be followed strictly.

WHAT ARE BACKWARD CLASSESU/Art. 16(4) of The CONSTITUTION?There was an overwhelming majority in the nation that was still backward socially, economically, educationally, and politically. These victims of entrenched backwardness comprise the present scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC). Even though, these classes are generically the "Backward Classes, the nature and magnitude of their backwardness are not the same.The words ' "backward class of citizens" occurring in Article 16 (4) are neither defined nor explained in the Constitution though the same words occurring in Article 15 (4) are followed by a qualifying phrase, "Socially and Educationally'' backward classes. In the course of debate in the Parliament on the intendment of Article 16 (4), Dr. B.R. Ambedkar, expressed his views that backward classes are which nothing else but a collection of certain castes. Incidentally, it is also necessary to point out that the Supreme Court in all its decisions on reservation has interpreted the expression `backward classes' in Article 16 (4) to mean the "socially and educationally" backward. It also emphatically rejected "economic backwardness" as the only or the primary criterion for reservation under article 16 (4) and observed that economic backwardness has to be on account of social and educational backwardness. The true meaning of this expression has been considered in a number of cases by the Supreme Court starting from Balaji to Indira Sawhney.

(1) In M.R. Balaji v. State of Mysore,it was held that the caste of a group of persons cannot be the sole or even predominant factor though it may be a relevant test for ascertaining whether a particular class is backward or not. The two tests should be conjunctively applied in determining backward classes: one, they should be comparable to the Schedule Castes and Schedule Tribes in the matter of their backwardness; and, two, they should satisfy the means test, that is to say, the test of economic backwardness laid down by the State government in the context of the prevailing economic conditions. Poverty, caste, occupation and habitation are the principal factors contributing to social backwardness.

(2) In R. Chitralekha and Anr. v. State of Mysore and Ors. and Triloki Nath v. J & K State and K.C. Vasanth Kumar v. Karnataka The apex Court explaining the meaning of Class observed that The quintessence of the definition of Class is that a group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual (educational) development in the sense not having so much of intellect and ability will fall within the ambit of 'any backward class of citizens' under Article 16 (4) of the Constitution.(3) Further in R. Chitralekha v. State of Mysore, it was stated that:

...what we intend to emphasize is that under no circumstances a "class" can be equated to a "caste", though the caste of an individual or a group of individual may be considered along with other relevant factors in putting him in a particular class.(4) In State of Andhra Pradesh v. P. Sagar, it has been observed that:The expression "class" means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or community cannot also be accepted.(5) In Triloki Nath v. J & K State (II) [8] Shah, J., speaking for the Constitution Bench has reiterated the meaning of the word 'class' as defined in the case of Sagar and added that "for the purpose of Article 16 (4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution.

The expression backward class is not used as synonymous with backward caste or backward community. The members of an entire caste or community may in a social, economic and educational scale of values at a given time be backward and may on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form a class.

(6) In A. Peeriakaruppan, etc. v. State of Tamil Nadu [9] The Supreme Court observed that A caste has always been recognised as a class. If the members of an entire caste or community at a given time are socially, economically and educationally backward that caste on that account be treated as a backward class. This is not because they are members of that caste or community but because they form a class.

(7) Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr. was of the view that In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens. Caste cannot however be made the sole or dominant test...

(8) In Indira Sawhney and Ors. Vs. Union of India and Ors. , the Court observed that:-

The meaning of the expression backward classes of citizens is not qualified or restricted by saying that it means those other backward classes who are situated similarly to Scheduled Caste and/or Scheduled Tribes. Backwardness being a relative term must in the context be judged by the general level of advancement of the entire population of the country or the State, as the case may be.

There is adequate safeguard against misuse by the political executive of the power u/Art. 16(4) in the provision itself. Any determination of backwardness is neither a subjective exercise nor a matter of subjective satisfaction. The exercise is an objective one. Certain objective social and other criteria have to be satisfied before any group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.

Caste neither can be the sole criterion nor can it be equated with 'class' for the purpose of Article 16 (4) for ascertaining the social and educational backwardness of any section or group of people so as to bring them within the wider connotation of 'backward class'. Nevertheless 'caste' in Hindu society becomes a dominant factor or primary criterion in determining the backwardness of a class of citizens.

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

WHETHER Art.16 (4) AN EXCEPTION TO Art.16 (1)?Although cl. (4) has an over-riding flavour as the opening words Nothing in the Article shall prevent the State from., suggest as Mudholkar, J. referring to these words in Devdasan pointed out: The over-riding effect of cl.(4) on cls. (1) and (2) could only extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances. That is all.

The view in T.Devadasan v. Union of India, [13] that Art. 16(4) was an exception to Art. 16(1) received a severe setback from the majority decision in State of Kerala v. N.M. Thomas,[14] which held that 16(4) was not an exception to Art.16(1) but that it was merely an emphatic way of stating a principle implicit in Art.16(1). The view taken in N.M Thomas has been accepted as the correct one and by the majority in Indira Sawhney where the Court pointed out: Indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.

ARTICLE 16(4) AND ARTICLE 335Article 335: provides that the claims of the members of the SCs and STs shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments in services and posts in connection with the affairs of the Union or of a State.

There has been some debate as to whether Art.335 had any limiting effect on the power of reservation conferred by Art. 16 (4). The nine judge bench of the Supreme Court in Indira Sawhney considered the argument that the mandate of Art.335 implied that reservation should be read subject to the qualification engrafted in Art.335 i.e. consistently with the maintenance of efficiency of administration. Dealing with the argument majority framed an issue as to whether reservations were anti-meritarian? The majority then observed that may be efficiency, competence and merit are not synonymous concepts; may be it is wrong to treat merit as synonymous with efficiency in administration and that merit is but a component of the efficiency of an administration.

Even so the relevance and significance of merit at the stage of initial recruitment cannot be ignored. It cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also firmly believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with-and may in some cases, excel members of open competitor candidates. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes and what is required is an opportunity to prove it.

But in case of Article 16, Article 355 would be relevant. It may be permissible for the government to prescribe a reasonably lower standard for scheduled castes/Scheduled tribes/backward classes consistent with the requirements of efficiency of administration. It would not be permissible not to prescribe any such minimum standard at all. While prescribing the lower minimum standard for reserved category, the nature and duties attached to the post and the interest of the general public should also be kept in mind. While on Article 355, we are of the opinion that there are certain services and positions where merit alone counts. In such situations, it may not be advisable to provide for reservations. For example technical post in Research and Development organisations/departments/institutions, superspecialities in medicine, engineering etc.

CENT PERCENT RESERVATION NOT PERMISSIBLE: No cent percent reservationThe state is not entitled to make a cent percent reservation. That would be violative of Art.16 of the Constitution. The Supreme Court has ruled time and again, that where there is no only one post in the cadre, there can be no reservation for the backward class with reference to that post either for recruitment at the initial stage or filling up a future vacancy in respect of that post otherwise the same would amount to 100 per cent reservation. A single promotional post can also not be reserved.

Application of Rotational Rule In case of Post Graduate Institute of Medical Education & Research, Chandigarh [15] it has been categorically stated that unless there is plurality of posts in a cadre, the question of reservation will not arise because any-attempt at reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented.

EXTENT OF RESERVATION The extent of reservation should not exceed 50%In Indira Sawhney case the majority pointed out that cl. (4) of Art. 16 spoke of adequate representation and not proportionate representation-although the proportion of population of backward classes to the total population would a relevant factor. After referring to the earlier decisions of the Court, the majority concluded that the reservation contemplated in cl. (4) of Art. 16 should not exceed 50%. It also pointed out that for the purpose of applying the rule of 50%, a year should be taken as the unit and not the entire strength of the cadre.

CONCEPT OF CREAMY LAYER:In the Mandal commission case, the Supreme Court has clearly and authoritatively laid down that the socially advanced members of the backward class, the creamy layer, has to be excluded from the backward class and the benefit of reservation under Article 16(4) can only be given to a class which remains after the exclusion of the creamy layer. This would more appropriately serve the purpose and object of Article 16(4).

At present, the benefits of job reservations are most chewed up by the more effluent sections of the backward class and the benefit of the reservation policy is not being percolated to the poor and the really backward class amongst them which makes them poorer and more backward. So, the government must give effect to the observation made my Supreme Court in Mandal case in order to achieve social and economic justice for the whole section of backward classes.

Conclusion The reservation policy in India in all sectors has become a disturbing and cyclical process. Initially with the introduction of constitution it provided reservation for only SCs and STs but later on OBC were included and now the other minorities are demanding reservation as well, which would ultimately lead to a situation where the seats left for the majority would not be proportional with their population. This therefore, becomes an unending issue, rather than an equal opportunity issue.Its not that only developing or underdeveloped countries are facing sociological problems because these problems still persist in the most developed nation in the world like that of USA. But in USA there is no reservation policy as such and there is an affirmative action program for the minorities and especially for the African-Americans. India being a developing country is slogging in almost all facets to achieve its 2020 mission but for that there is a serious need for reconsideration of the reservation policy in India because the reservation policy compromises with the efficiency of a Country by not sincerely recognizing the merits of backward classes which therefore hamper the development of a country. Thus reservation alone cant be a solution and there must be a swift implementation of affirmative action programme in India especially when it comes to reservation in employment.

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

&CCEISK)# WO ........................................ -

AND JUIMCIAL PROCESS

The Indian constitution proclaqms India as sovereign, socialist,

secular, demcclratic republic ancl promises to all its citicens, justice,

liberty, equality and fraternity. The State created by the Constitution

is pledged t o politico-socio-economic equality of all citizens

irrespective of sex, wste and creed, committed t o social rekrrn, social

change and removal of discrimination between one citizen and another.

Every citizen irrespective of religion, caste, creed and sex, is therefore,

entitted t o education and employment according t o his capacity.

2 In an inequitable society, such as ours, some are always p r o d -

ded for and advanced, while some are deprived and trail behind. We

can overcome this by securing emancipation of the weaker sections.

Since independence there has been a special concern noton1y to

promote the interest d all the groups in the country, but also to

provide for protective status to certain groups o r people in the society

specially of the Scheduled Castes, Scheduled Tribes and the Backward

Classes. The founding fathers devoted various articles relatiog to

protective discrimination provision in the Constitution for the

levelling up of the lowly, the depressed and oppressed. Subsequently

Article 39-A 2 was introduced by amendment to achieve the same

object. The founding fathers also made provisions directing the State

-

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

.

Berhampur University, Berhampur (Orissa).

1. Articles : 15, 16, 17, 19, 23, 25, 29, 35, 38, 46, 164, 244, 320 (4) 330; 331,

332, 333, 334, 335, 339, 340, 341 & 342 of the Constitution of India.

2. Article 33A: Eqaaal justice and free legal aid: The State shall secure that

the operation of the legal system promotea justice on a basia of equal oppor-

tunity, and shall, in particular, provide free legal aid, by suitable legislation

or scheme or in any other way to ensure that opportunities for securing

justice are not denied to any citizen by reason or economic or other

disabilities.

i 52. CENTRAL INDIA LAW QUARTERLY [ Vol. 3:1

to undertake massive couipensa!ory measurzs to secure equality and

social justice to these people. a

3. Following the spirit of the Constitution, the various Five Year

plans have initiated a number of policies and programmes for the

different groups of weaker sections. All the six Five year plans have

made special allocation for thB development of the weaker sections.

Starting with an allocation of Rs. 31.90 crores in the First Five Year

plan, the Sixth Five Year plan allocated a total of Rs. 96 .30 crores

for the welfare of the backward classes. A major share of allocati~n

(Rs. 506.50 crores in the Sixth Plan) has gone to education.

4. The programme of equalisation received increased emphasis

since Fourth Five Year plan. The scheme of special sub-pl ln for the

Scheduled Castes and Scheduled Tribes was initiated in ths Fifth Five

Year Plan, The Sixth Five Year Plan paid special attention to v a r i ~ u s

groups of weaker sections. The scheme of Special Componer~tPlan for

the Scheduled Castes was started in this pldn. Some of the irnportaut

proglarnmes for the weaker szctions are :

(0 provision of schooling facilities within walking distance;

(ii) free education at the elementary level;

(iii) provision of ancilldr y services such as, equipment, uniform

and mid-day meals;

(iv) stipends and scholarships at secondary level;

(v) post-matric scholarships and reservation and relaxation i n

marks in higher education i n the ceses of Sch:d:~led Ca\tes

and Scheduled Tribes;

and

(vi) institution of 4 scholarslips p3r block f ~ children liviag in

r

the rural arras. .

5. Of cour$e, there has been an improvement in the educational

field of the weaker sections,- partici~larly of Scheduled Castes,

Scheduled Tribes, . and Backward C l a ~ e s as a result

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

cases) and Article 4 6 (protection of educational and economic interest of

Scheduled Castes and Schebuled tribcs and other weaksr sections) of the

Constitution of India.

[ 1990 RESERVATION I N EDUCATIONAL INSTITUTIONS 53

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

Castes increased from 11.3 percent in 1961 to 14.7 per cent in 1971

and 21.4 per cent in 1951. Similarly the literacy rates of Scheduled

Tribfs improved from 8.3 per cent in 1961 t o 11.3 per cent in 1971 and

16.4 per cent in 1981.

6. I n relative terms a l w there has been considerable improvement

in the educational situation of the Weaker Sections. For example, a t

the school level the co-cfficien! of equality for Scheduld Castes

improved from 75.5 in 1964-1975 to 89.0 in 1978-79. The increas: has

been marked to be more significant at tbe higher educational level,

from 37.4 in 1964-65 to 53 6 in 1978-9 in the case of general

education and from 2j.3 in 1964-65 to 51.8 in the case of proftssiooal

education.

7. How;v:r the gap b-tween the Scheduled Castes and Sched-

uled Tribes and others continued to be wide. Various researches also

indicate that the gap amcing different groups of weaker sections is

widening. I t is further noticed that improvement in the educatianal

situation of weaker sections iq more in prestigio IS professional c o k -

ges, it is good in general arts and science colleges and is much less

than their representation in higher education in general. Even quanti-

tatively the picture is not as goo1 as is given by official statistics as

there is higher dropout and stagnatijn rate amjng the weaker section

compared to general population.

8. All theye call for a review of policies and programmes of reser-

vation of seats fdr the weaker sections in educational institutians and

posts in public services. This brief paper attempts to make an a~:aly-

tical study of the role of judiciary in respect of protective discrimi-

nation in education spcoially reservations of seats of certain groups

in educational institutions and po;ts i 1 public s:rvices and their imp-

act on the socio~economic o n d i t i ~ n s the country.

c of

9. In addition to the socio-economic b~ckwardness,the uneven

development may a150 be on account of caste system prevailing in the

Indian society, specially the Hindu society. It becomes, therefore,

necesbary to lift the backward to the level of the fwward by devising

variws methods. One such devicc is to keep some seats in educational

institutions and some posts in public services reserved. The purpose

af reservation provision was to lift the backward classes-socially,

CENTRAL I N D I A LAW QUARTERLY [ Vol 3 : 1

educationally and economically so as to bring them in to the mainstr-

eam of national life. It was said in the Constituent Assembly that the

Scheduled Castes, Scheduled Tribes and other backward classes,

owing to a n unfartunate legacy of the past, sufferred from disabilities

and handicaps. They had been neglected in the past and denied their

rights and lawful claims as a result of their general backwardness.

I t was, therefore, necessary to give special treatment t o them,

a t least, as a temporary measure, in matters in which their ineq-

uality and backwardness constituted a hinderance to the development

of the country. Our late Prime Miuistzr, Mrs. Indira Gandhi on 1st

April, 1981, while talking to the repxters of Malabar Press Club at

Kozhikole defindidg the reservation policy of Government said,

reservations are there because a large section of the population had

an unfair deal for centuries.

10. In the Indian context the weaker sections comprise Scheduled

Castes, Scheduled Tribes, people living in rural areas, and people

living in backward and remote regions of the country. On these

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

in the categories of weaker sections. Considering the availability of

resources it may not at all b.: possible l o extend financial or any other

sort of help to such a big part of the population. Hence, it would be

wise if the concept of weaker section is confined to Scheduled Castes,

Schedulej Trib-s a l ~ dBackward Classes only. As far as the definition

of Scheduled Castes and Scheduled Tribes is concerned there is n o

much di>pute but in respect of Backwarj Classes difficulties have

been faced in the past as well a s are being faced at present.

11. Questions have often arisen whether any classes of persons i n

India, other that] the Scheduled Castes and Scheduled Tribes, can

be treated as socially a ~ l deducationally backward classes and whether

a list of such backward classes can be made and recommendation be

made for their adequate safeguards as provided t~nderthe Constitution

of India. At tne same time it has b x o m e the first and foremost point

to decide, as to who are backward cla~ses.

Dr. Ambedkar observed in the Constituent Assembly;

Somebody asked me, what is bdckweril community ?

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

5. Articles 341 and 312 of the Constitution of India.

1990 3 RESERVATION IN EDUCATIONAL INSTITUTIONS 55

Well, I think any one who reads the language of the draft

will find that we have left it to b: determined by each local

Government. A backward community is a community which

is backward in the opinion of the Government.

12. Of course, the Constitution does not define backward class

as at the time of its making, not mucn information was available about

them. The Scheduled Castes and Scheduled Tribes are generally back-

ward and the expression backward classes ordinarily refers to them.

13. However, Article 340 of the Constitution provides for the

appointment of a Cornmission to investigate the condition of the back-

ward classes. Such a Cornmisson was appointed in 1952 with Kaka

Sahcb Kalelkar as Chairman to deal with the following :-

(9 To determine the tests by which particular class or group

of people can be called &backward;

(ii) To prepare a list of such backward communities for the

whole of India;

(iii) T, examine the difficulties of backward classes and to

recommend steps to be taken for their amelioratioo.

14. The committee submitted its report to Government in the year

1956, but the Commissions recommendations were held to be vague

and wide and hence, the State Governments were authorised to give

assistance to the backward classes in terms of the list prepared by the

State Governments themselves.

15. Though the Constitution has accepted the concept of equality

as the foundation for social justice yet it is not absolute in terms and

is circumscribed by limitations. In a sxiety where different sections of

people are dissimilarly placed, they cannot be made equal by merely

treating them as equal. In such circumstances the principle of equality

is to be construed with reference to reasonable classification. It was

the intention of the framers of the Constitution to do away with caste

system, b u t 3 was soon realised that when on account of historical,

geographical and economical reasons the backward classes and adva-

nced classes are allowed to compete without adequate safeguards for

the former. the result would be that the existing gap between them

would further widen.

6. CAD Vol. VII, p. 702.

56 CENTRAL INDIA LAW QUARTERLY [ Vol 3 : 1

16. If one tries t o understand the phrase backward classes he

comes accross the word caste or c, mmunity. I n India the caste

system and its subdivision, is only in H~rldusociety. The word caste

has been used in Article IS, 16 and 29 ofthe Constitutioi~of India, but

the same has not deen defined ally where in the Constitulioil. The task

is an extremely difficult one. M m y communities desire that they sho-

uld be characterised as backward, because they can enjoy social prot-

ection; avail of the spicial privileges extended t o the backward

classes and hence they exert political ir~fluence on the Government

for being remg lised as *backward. As soon as a class is desig-

nated as backward, even rich, well placed and well educated members

of that class claim tiles:: privileges in reality aud the actually backward

people of tt e class gtrt excluded. This is against the interest of the

really backward p e r s m a n d frustrates the basic objective of the

Constitution. It is also cmsistennt with this principle that those who

are advanced. even if they nominally belong t o the backward groups,

should get no share i n the reserved seats and jobs.

17. There are of course types and degree of backwardness. Some

r 5

are backwwd only economically wlile others are backward education-

ally as well as socially Although economic backwardness is at the

root of social and educational backwardness. Jn this country the

peculiar caste system has added a new dimension t o the problem. On

account of the caste taboo, educational and social advancement was

denieJ even to the eco~omicatly sound* The scheduled caste and

scheduled tribes are therefore backward in all respects. Among the

backward, further, the levels. of backwardness vary. Even among the

Scheduled Castes and Scheduled Tribes, some ale more backward

than others. Hence, it stands to reason that those who are backward

i n all rzspects such as the Scheduled Castes and Scheduled Tribes

sllould get preference over others and those among the Scheduled

Castes and Tribzs who are more bdckwed should get priority over

those who are less b ~ c k w a r d .

18 The paition of l d w as crystalired for dztermioation of .back-

ward cldsses is as under :

0) The bracketting of socidlly and educationally backward

classes with the Scheduled Castes and Scheduled Tribes in

Article 15 (4) and the provision in Article 338 (3) that the

.

7. See Jairl, M. P., Indian Coustitutional Law (3rd Ed., p. 61 k)

RESERVATION IN EDUCATIONAL INSTITUTlONS 57

reference to Scheduled Castes and Tribes Were to be const-

rued as including such backward classes as the President

may by order specify on receipt of the report of the Comm-

ission appointed under Article 340 (I), showed that in the

matter of their backwardness they were comparaMe to Sch-

eduled Casttes and Tribes.

The concept of backward classes is not relative in the sense

t h a t any class which was backward in relation to the most

advanced &ass i n the community must be included in it.

(iii) The backwardness must be both social and educational and

not either social or educational.

(iv) Article 15 (4) refers to backward classes and not backward

castes, indeed the test of caste would break down as regards

several cornmumities which have no caste.

Caste is a relevant factor in determining social backwardness

but is not the sole dominant test.

Social backwardness is in the ultimate analysis the result

of poverty to a large extent. Social backwardness which

results from poverty is likely to be aggravated by considet-

ation of caste to which the poor citizens belong, but that

only shows the relevaace of both caste and poverty in

determining the backwardness of citizens.

(vii) A classification based only on caste without regard to the

other relevant factors is not permissible under article lS(4);

some castes are, however, as a whole socially and educati-

onally backward.

(viii) The occupdtion f>llowed by certain classes (which are

looked upon as inferior) may contribute to social back-

wardness and so may the habitation of people for in a

sense, the problem of social backwardness is the problem of

rural India.

The division of backward classes into backward classes is

in substance a division of the population into the most

advanced and the rest, the rest being divided into backward

and most backward classes and this is not warranted by

article 15 (4).

The objrct of reservation would be defeated if a backward

is treated as backward for all times to come.

58 CENTRAL INDIA LAW QUARTERLY [Vol. 3:l

(xi) The aggregate reservation (including backward classes)

should in no case exceed 50% .

(xii) The Courts jurisdiction is limited in deciding whether the

tests applied by thc State in deterrninir~g the backward

. classes of citizens are valid or not. 8

(a) Socially and educationally backward classes of citizens in

article 15 (4) cannot be equated with castes. 9

(b) The object of the reservation under article 15 (4) is to

recopise the factual existent: ofsocially and educationally

backward classes in India and to make a sincere attempt to

promote the welfare of the weaker sections of the comm-

unity. Artiele 15 (4) gives effect to this principle. The con-

cept of backwardness in Article 13 (4) is not intended to

be relative in the sense that classes who are backward in

relation to the most advanced classes of aociety should be

ixluded in it. 10

(c) The important factor to be noticed in article 15 (4) is that it

does not speak of castes but only speaks of classes. If the

makers of the Constitution intend to take castes also as

units of social and educational backwardness, they would

have said so as they have said in the case of Scheduled

Castes and Scheduled Tribes. The juxtaposition of the

expression backward classes and Scheduled Castes in

Article 15 (4) also leads to a reasonable inference that

the expression Class is not synonymous with castes.

(d) The criterion for determining the backwardness must not

be based solely on religion, race. caste, sex or place of

birth and the backwardness being social and educational

must be similar to the backwardness from which the sched-

uled castes and scheduled tribes suffer. l2

(e) The classification of backward classes on the basis of castes

-- -

3. Chahatlal v. State, AIR 1979 Alld. 135

1. Jaishree v. State of Kerala, AIR, 1978, SC. 2381.

0 Ibid

I. Chitralekha v. State ~f Mysore. AII, 1964 S2 182 1; Triloknath v. State

of J & K AIR 1967, SC 1283.

2 State of Andhra Pradesh v. P Sagar, A. I. R. 1958, SC 1319

.

19901 RESERVATION I N EDUCATIONAL INSTITUTIONS 39

is within the perview of Article 15 (4) if those castes are

st own to be socially and educationally backward. la

(f) Basically and essentially even social and educational back-

wardness is the result of economlc backwardness.

) It is doubtful if the test of averagz student population in the

last three high school classes is appropriate in determining

the educatiorlal backwardness and that it may not be nece-

ssary or proper to put the test as high The Court does not

propose to lay down any hard and fast rule as it is for

the State to consider the matter and decide it in a manner

which is consistent with the requirements of Article

1 5 (4). l6

18. The discriminatory attitude is necessary to be adopted to make

the objective of fraternity feasible. Article 15 and 16 bear ample

testimony to the awareness of the framers of the Constitution

10 the need of discriminatory meawres. for the protection of

the backward classes and weakar sections. Article 15 while prohibiting

discrimination on grounds of religion, race, caste, sex or place of

birth in clauses ji) and (2) there of makes exception in clauses 3 and

4 there of empowering the State to make special provisions for women

and children and for socially and educationally backward classes and

the Scheduled Castes and Scheduled T~ibes respectively. Similarly

while clause 1 a:ld 2 of Article 16 enjoin equality of opportunity to be

offered to all citizens in matters of employment or appointment to

any office under the State irrespective of religion, race, caste, sex, des-

cent, place of birth or residence, clauses 3, 4 and 5 thereof make exce-

ptions to this rule: clause (4) thereof provides for the State to make

reservations for backward classes not adequately represented in the

services under thc State.

19. Besides eJuc~tiona1and c ~ l t u r d

rights of the mioorities stand

protected by appropriate provision gudranling their right to establish

and manage institutions for the pxrposes free from interference by the

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

v. State of Madras. AIR 1968 SC 1012.

14. Padmaraj Sarnarendra v. State, AIR 1979 pat. 266

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

60 CENTRAL INDIA LAW QUARTERLY [ Vol. 3:l

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

of seats in Parliament and in the Ass5mbly for the Scheduled Castes

and Scheduled Tribzs. l7 The concept of protective discrimination is

therefore a basic concept with our constitution essential for securing

Justice liberty and equality to all her citizens, for the ultimate

objective of promoting Fraternity and of bullding up unity and

integrity of the Nation.

20. The American society comprises the whites and the

Blacks have been faced with thz similar problems. Working on the

principle of equality before law, in the year 1954, the U. S. Supreme

Court in the case of Brown v. Education la declared segregation to be

unlawful. It was followed by statute prohibiting all forms of racial

discrimination. But this still left the black citizens economically disad-

vantaged and without the same opportunities of access to higher

education and the professions or even skilled jobs as the White

Americans. To ensure that there is equality not merely in theory

b j ~ t fact, the State presently pursues the policy of affirmativeaction

in

for giving opportunities to the s 7cially and educational backward

citizens in highar educatios and in professions, affirmative action is

worked out by reserving a definite quota for the Blacks in educational

institution and in professional shperes. It is not humanitarianism but

realisation that unless in the case of the undsr dev4oped citizens, the

disadvantages of the past are offset by the positive measures, quest for

fraternity b:twean the unequals would remain a mirage which would

ultimately endanger the solidarity and security of the Nation.

21. Let me next cmsider the judicid interpretations in respect of

reservatio~l~ seats in educational irlstitutions fdr the Scheduled

of

Castes Scheduled Tribes and the Back*ard classes.

22. . Immediately after the passing of the Constitution, the then

Mldras Gwernin:nt isssed an executivz mandate making reservation

of seats in colleges and public services for backward class$s. The

Government orders were challanged in Champakam Dorairajan v. State

of Mahas. Ie Th: Coilrt struck down these orders saying that the

16. Articles 29 and 30,of the Constitution of India

17. Articles 30 & 31 of the Constitution of India

18. 347 U. S $33 (195t). SCC also P. K.Triplthi S o n e insights into Fundamental

.

Rights University of Bombly (1972) p. 178.

19. A 1. K. 1951, SC. 226

I990 ] RESERVATION IN EDUCATIONAL INSTITUTIONS 61

reservation on the sole consideration cf caste violated the Constitution.

It is only after this, that Articles 15 and 16 of the Constitution were

amended by insertion of subclause (4) enabling Government to make

special provisions for the advancement of any socially and education-

ally backward classes of citizens incl~diogSchzduled Castes and Sche-

duled Tribes 2e

23. The G~vernmrnt Mysore pacsed an order reserving seats in

of

Engineering and Medical Col\tges for certain castes by classifying them

as backward. This order was struck down by the High Court 21

on the following grounds :-

(0 The Court emphasized that Article 15 (4) envisages back-

wardness which is both social and educational and not

either. Therefore though caste may be a relevant factor it

cannot be the sole dominant test, to consider backwardness.

Poverty, occupation, place of birth, place of habitation all

contribute to bdckwardness and such factors cannot be ign-

ored. If crassi6cation for social backwardness were to be

based solely on caste, then the caste system would perpe-

tuate in Indian society. Also such test breaks down in

relation to these sections of the $ociety which do not recog-

nise caste in the conventional sense as kt~own to the Hindu

society. The defect in the Mysore Government order was

that it was based soltly on caste without regard t o other

relevant factors and this wds not permissible under Article

15 (4). *1A

(ii) The test adoptcd by the State to measure educational back-

wardness was the basis of the average of students popul-

ation in the last three high school classes of all high sch-

ools in the State in relation to a thousand citizens of that

community. The average for the whole state was 6.9 per

thousand. The Court held that assuming that the test app-

lied was rational and permissible to assess educational

backwardness, it was n3t validly applied. Only a commun-

ity clearly b:low the State-average could properly be

regarded as backward and not a community which comes

20, lbid p. 229

21. Balajiv, State of Mysore, A. I. R. 1963, SC 649

21. A. Jaio M. P. InJian CLnjtitutional Law, 3rd cdn. p. 341

CENTRAI INDIA LAW QUARTERLY [ Vot 3 : 1

near the average. The vice of Mysore order was that it

included in the list of backward classes, castes or commu-

nities whose average was slightly above, or a t par, or just

below the State average, e. g. Lirlgayats with an average

of 7.1 per cent had also been in the list of backward

communities. 22

The Court declared that Article 15 (4) did not envisage

classification between back ward and more back ward

classes as was made by the Mysore order. Article 15 (4)

ar~thorised making of special provisions for really

backward classes and not for such c l a s w as were less

advarwed than the most advanced c l a w s of the State. By

adopting the technique of classifiying the communities into

backnard and more backward cla~ses, 90% of the total

State popu)ation had been treated as backward. The order

in eflect sought to divide the State population into the

most advanced and the rest, and this was not envisaged

by_Article 15 (4).

21. I n Chitralekha v. State of Mysore 2 Mr. dustice Subba R a o

(as he then was) reiterated the position tha? the classes contemplated

i Article 15 werenot castes. His Lordship pointed out that the juxt-

n

aposition of the expression backward classes aod *Scheduled

Castes. in Article 15 (4) also leads reasonably, to the inference that

the expression classes was not synonymous with caste and

observed :

If we interpret the expression classes as castes the

object of the Constitution will be frustrated and the people

who do not deserve the adventious aid may get it to the

exclusion of those who oeally deserve. This anomaly will

not arise without equating caste with class. Caste is taken

as only one of the considerations to ascertain whether a

person belongs t o a backward class or not. On the other

hand, if the entire sub-caste by and large, is backward it

22. Ibid.

23- Ibid.

24. A. I, R. 1964 SC 1823.

1990 ] RESERVATION IN EDUCATIONAL INS IITUTIONS 63

may be included in the Scheduled Castes by followirlg

appropriate procedure laid down by the Constitution. 26

25. In Sta:e of Andhra Pradesh v. Sngar. 26 the Supreme Court

took another step further in the direction of discouraging classification

on the basis of castes. In this case the Supreme Court held that since

Ariicle 15 (4) was by way of exception to the Fundamental Rights in

Article 15 ( I ) , once it was shown that, prima facie, a classification

infr.inged the right in clause ( 1 1, th: burden was on the Government to

show that it was protected by the excepti~nin Article 15 (4). Further,

the Court held that a classification based on caste, as the one involved

n the case in hand, did, prima facie, violate the rights in clause (I).

r h e Governments case was that its expert officials, and a Subcommi-

.ee of the cabinet had satisfied themselves that the classification was

lased on proper criteria and not solely on caste, and the court should

ccept their findings. Sp2aking through Mr. Justice Shah (as he then

vas) the court rejected this contention, and held that the issue was

ustlciablc, and the High Court below was right in insisting that the

lnaterials on the basis of which the officidls and the cabinet sub.comm-

:tee had determined backwardness and prepared the list, must be

laced brfore the Court to decide whether the Constitutional require

lent has been satisfied. And since this had not been done, it was held

]at classification made by the government on the basis of caste was

ghtly invalidated by the High Court.

I The policy of protective discrimination in education, specially

servation for certain groups in educational institutions calls for an

Gective review of policies towards the weaker sections so that some

tter strategies could be evolved.

. The practice of naming castes as backward classes9 without

nsideration is purely irrational aild such classification has the

lowing defects :

i) It has tendency to perpetuate the caste system and thus

hamper the real growth of an egalitarian society;

ii) If within a backward class no real classification be made

then all the privileges reserved for the clasi may be utilised

- -

Ibid, 1834. See also M L. Upadhyaya, Legal Aspects of Equslity of Educa.

d,a (1974) J B C 1 113.

64 CENTRAL INDIA LAW QUARTERLY Vo1.3:I

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

ever.

28. From the above it is imperative that the castes as such should

not be recognised for the pilrpose of piviqg assistance. The jiidicial

pronouncements have also had their impact in the matter of giving

assistance on the ground of ( c ,nornic back~ardness.1 K.S. Jayshree

I1

v. State of Kerala. 27 the Sl~preme Court has upheld a Government

order lbting Backward Classes excluding such familics as have an

aggregate annual income of Rs. 10.000 t,r a h v e . The order was chall-

anged by the candidate b longing to the backward classes who had

been denied the privilege of preferential admiscioii to a medical college

because her famiiy income exceeded Rs. 10,000 annually. In an opinion

Ray, C. J. (as he then was) held that neither caste nor poverty could

be the sole determining factor of social backwardness. However, he

upheld the impugned order of September 2, 1975, which classified

familics from the backward classes with all annuel income of less than

Rs. 10,000 or more into a sub-class and denied protective discriminati-

on to them.For example an Ezhava with an annual income of less than

Rs. 10,000 was entitled to protective discrimination while thile this

profection was denied to another Ezhava with higher annual income.

Hence, it is clear that the Court emphasised that poverty or economic

standard is a relevant factor in determining backwardness.

29. In Usharani v. Maharshi Dayanand University. the Punjab

and Haryana High Court upheld a reduction in tl:e reservation of

backward classes from 10% lo 2% and held that article 15 14) did not

confer any right on a citizen but was merely an enabling provision.

The same High Court in another case held that where total reserv-

ation went upto 74% it was excessive and arbitrary and violative of

article 14. The Karnataka High Court in Syed Noor Fatimah v. Selecc-

tion Committee for Admission to I Year MRBS Course and etc. O obse-

rved that an authority selecting for admission had a duty to independ-

ently scrutinise the certificate brought by the students regarding their

being of the backward class, particularly where it was an admission

for a reserved seat.

30. I n K. C. Vasanth Kumar v. Klrnataka the Supreme Court

27. A. I R. 1976 SC 2381

.

28. A. I. R. 1984 P&H, 297.

29. Shasi Prava v. Punjab University, AIR 1984, P& H 434

30. A. I . R . 1984 NOC, (Kant) t31.

31. A. I. R. 1985 sc 1495 131.

19901 RESERVATION IN EDUCATONAL INSTITIUTIONS 65

dealt with the subject of protective discremination in a compreh-

ensive manner. Chandrachud the then C. J.laid down the follo-

wing policy propositions :-

(9 The reservation in favour of the Scheduled Castes and

Scheduled Tribes must contirlue as at present, that is,

without the applicatiorl of a means test, for a further period

not exceeding fifteen years. Another fifteen, years will

make it fifty years after the advent of the Constitution, a

period reasonably long for the upper crust of the oppressed

cldss to overcome the baneful effects of social oppressi3n,

isolation and humiliation;

(ii) The means test, that is to say, the test of economic back-

wardness ought to be made applicable even to the SCs and

STs after the. period mentioned in (i) above;

(i i i) So far as the other backward classes were concerned, they

should satisfy two tests, namely; (a) that they should be

comparable to the SCs and STs in the matter of their back-

wardncss and (b) that they should satisfy the means test

such as a State Government may lay down in the context

of the prevailing economic conditions;

(iv) Tne policy of reservations in employment, education and

legislative institutions should be reviewed every five years or

so. That will at once afford an opportunity to the

state to rectify distortions arisieg out of particular facets

of the reservation policy and to the people, bqth backward

and nonback~ard, to veutilate their views in a public

debate on the practical impact of the policy of reservation.

3 1. D. A. Desai strongly advocated the application of economic

critezion for identifying the socially And educationally backward

classes. The judge noted with concern how the use of caste as a criter-

ion of backwardness had created vested interests in remaining or being

identifed as backward. It had led to perpetuation of the caste system.

I n the case of SCs and STs the judge conceded that caste as a crite-

rion could not bc excluded. But even in that respect the economic

criterion was worth applying by refusing preferred treatment to those

who hsd already benefite~by it a rd had improved their position.

66 CENTRAL INDIA LAW QUARTERLY [ Vol 3 :1

32. 0. Chinnappa Reddy J did not agree with the suggestion that

the backward classes should be comparable to the SCs and STs. The

Judge observed that only the enlightened classes would capture all

the #open9posts and seats, and reserved posts and seats would go to

the SCs and STs and those very near to SCs and STs. The bulk of

those behind the enlightened classes and ahead of the SCs and STs

would be left high and dry. The judge rightly pointed out that in

adopting individual poverty as the criterion to identify a member of

the backward class, there was a danger of many psuedo-poor masque-

rading as poor on the strength of false income certificates. 2 He was

obviously not in favour of usiog economic criterion alone for identif-

ying the backward classes. He said :-

4rPovertyof cohse, is basic being the root cause as well as

the rudful resblt of social and educational backwardness.

But mere poverty it seems is not enough to invite a Con-

stitutional branding, because the vast majority of the

people of our count@ are poverty-stiuck but some of them

are Socially ahd ed8catibnally forward and others back-

ward. *

33. The Judge poiitid 6t that Brahmins could not be described

as socially and educationally backward even though there might be

poor peo?le among them. Similarly, no one could possibly claid (hat

the Patels qf dujrat, the Hayashras bf Bengal, the keildy and Kamas

of Andhra ~ r a d e s h

were socidly and educatio;&lly backward classes

dkspite thk fict that the majority of them may be poor farmers and

agricultural 1abou;krs. Re furfhei sdd :-

~ l a k pdverty not individual poverty, is tbeiefore, the

primary test. Other ancillary tests are the way of life, the

st?ndard of living, the place in the social lii)iarchy, the

habit and customs etc. etc-a---* Notwithstanding our

antipathy to caste and sub-regionalisn, these are ficts of

d .

. lift: which :annot be wished away. S5

I .

1

32. 1985 ~ n n u a lSurvey of Indian Law (ILI), p. 220

33. Supra note 30 p. 15 29

34. lbid.

35. lbid.

1990 ] RESERVATION IN EDUCATIONAL INSTITUTIONS 67

34. A. P. Sen J. also agreed with Reddy J in the view that economic

backwardness could only be one of the tests of backwardness. Accor-

ding to him, the eipression backward classes should be used as

synonymous with the weaker section of society. The predominant and

theronly facto; for making qxciA provision udder article 12 (4) 0p

for the resetvation of posts Cnd appointments uncles article 16 (4)

should be poverty and caste or sub-caste or a group should be used

only for the pul pose of identification of persons comparable to the

SCs and S Ts. The jl;dge admitted that the court was ill suited to iden-

tify or lay down te& for identifyingwho were backward. HOsug~ested

that a permanent Notional ~arnmission for backward classes which

would. constantly carry out sociological and economic studies from

State to State and from region to region be set up. ss

35. Venkataramiah J. emphasised that the rule that more than 50%

of the total number or seats or posts could not be reserved had pot

been overruled by the court and was still the law. The judge pointed

out that various ameliorative measures such as liberal grants of schol-

arships, free studentships, free boarding and lodging facilities would

go a long way towards mitigating the disadvantage qf backwardness.

The judge held that two tests should be applied for determiqation of

backwardness ; .

(9 the conditions of the caste or group or community should

be more or less similar to the candidates in which the SCa

and STs were situated; and

(ii) the income of the family to which the candidates belonged

should not exceed the specified Sirnit. These t y o would be

relevant for article 15 (4). For Article 16 f4), in addition,

it would be necessary to see whether the caste or group was

represented adequately in the services.

Conclusion :

36. To determine backwardness, economic consideration is an

essential consider&on. When improvement is noticed in the economic

position, such family should not be given advantages or the privileges

3.

6 Ibfd.

37. Supra note 30.

68 CENTRAL INDIA L A W QUARTERLY [ Vol 3 : 1

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

real backward poor persons of their chance to make progress.

37. If we attempt a review of various programmes for the weaker

sections, specially of the Scheduled Castes, Scheduled Tribes and

backward classes in respect of their education, we will find that most

of these relate to higher education. V e ~ ylittle has been done regarding

their edricatim at the SCIOO~ level. At school level education is free

and there ate. provisions for the free suoply of uniform, b?oks,

equipments and midday meal. Inspite of these facilities it is found .

that, a large proportion-of the111 dropout even before complelion of

the primary and Ibwer secondary stages. The neason for this is that

the weaker sections who are poor and whose children when they

are 7 6~ ,8 years old start working for mereq subsistence. In most of

the cases it has been found that the dropout is not of economjcajly

weaker students but economically po3rer ones.

,

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

the school and retain them for continuation of their studies then it

would bt becessary not only to provide free education but also to

cover the actual cost of education. For this more money needs to be

spent in the forthcoming Five Year Plans.

39. There are some administrative lacunae also. In some cases

illcentives are provided, but the same are not worked out in time and

as such things are delayed and ultimately it defeats the very purpose of

the scheme. For ensuring maximum benefit of the scheme there should

be a system of continuous follow up of the schemes. Hence, the forth-

coming Five Year *Plan Should make provision of money for this

purpme. I .

4.

0 It is indisputable that lot of schemes and programmes for the

weaker sections have been introduced, such as, stipends, scholarships,

some ancillary services, hostel facilities etc. All these aim at e n ~ o l l i ~ g

more and more children of weaker sections in the schools, but very

little is done to see that thelcbildren of weaker sections continue in

ancEcan iyprove their performances. Government is concerned

for theif quantitalive improvement rather than qualitative, and this

has further led to the high rate of dropouts. Hence, in the fortl;coming

Five Year plan, it is necessary to consider the programmes of qualita:

tiva impovzment ald far this some resources need to be earmarked

1990 ] RESERVATION 1N EDUCATIONAL INSTITUTIONS 69

exclusively. A programme of raising the qualitative level of the weaker

section, which has been discussed earlier, is to identify at least 1,000

meritorious students from the deprived at the end of lower secondary

level from different States, give them good vocational guidance and

place them in good institutions according to their aptitude. These

students may also be given fipancial assistance fon meeting the expenses

by which they can.cover the entire cost of education including the

private cost of education. A continuous monitoring o f , their progress

and remedial teaching whenever found necessary is also suggested.

41. Another issue which needs to be considered in the forthcoming

Five Year, Plan in respect of education to the weakef sections is the

question of fixiog priorities among the weaker sections themselves.

The policy on reservation is being enjoyed by the people belonging to

Scheduled Castes, Scheduled Tribes and Backward Classes sioce the

cdmmencement of the Constitution. After more than two decades of

the operation of these provisions, it reveals that the urban population

belonging t o the above castes are the maximum beneficiaries and their

couriterpart in the rural areas have been neglected. In other words i t -

can be said that the real depressed, oppressed and the needy do not

get the benefi