This article by Shubham Gupta deals with the contemporary debate around the dilution of Indra Sawhney and the failure of the Indian Reservation Setup.
Reservation has always been a highly emotive subject. Reservation and its magnitude had been a matter of debate for the Constituent Assembly and have continued to be so for Parliament and the Courts.
Yet again, last month the same was listed before the Constitution Bench of the Supreme Court to examine, inter alia, whether the 9 judge bench judgement of Indra Sawhney v. Union of India (1992) needs to be referred to a larger bench for reconsideration.
Through the course of the hearing, the court observed high decibel submissions seeking the reconsideration of law laid down in Indra Sawhney. One of the arguments made by various learned councils was that over the years the judgement has lost its relevance and needs reconsideration. They have substantiated their argument with the fact that the effect of the judgement has been diluted by various Constitutional Amendments and hence it requires reconsideration.
Senior Advocate Mukul Rohatgi submitted -“After the Constitutional amendment, the reservation across the nation has broadly crossed 70%. What was struck down has been resurrected? Whether Indra Sawhney will still rule when there is a Constitutional amendment is a very big question.”
Along the same lines, Senior Advocate Jaideep Gupta contended that a relook of Indra Sawhney was required as much water had flown under the bridge since 1991.
The bench after a marathon hearing of ten days has reserved the judgement which may mark the beginning of new dynamics of Socialism in India. While we eagerly wait for the pronouncement, here is an attempt to list down various Constitutional Amendments that have somewhat toned down the application of the law laid down by the 9 judge bench and to analyse whether the judgement needs reconsideration.
I. Reservation in Promotion
The Hon’ble Supreme Court in Indra Sawhney pronounced that Article 16(4) is confined to initial appointment and cannot extend to the reservation in the matter of promotion. The court held that handicap should be given to the backward class of citizens only at the stage of initial appointment. It would be a serious and unacceptable inroad into the rule of equality of opportunity to say that such a handicap should be provided at every stage of promotion throughout their career. That would mean the creation of a permanent separate category apart from the mainstream and would affect the efficiency of administration.
To dilute the proposition laid down by the court, Parliament inserted clause 4A to Article 16 by The Constitution (Seventy Seventh Amendment) Act, 1995 which states that – Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the state in favour of the Scheduled Caste and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
II. Carry forward rule and the cap of 50%
The Hon’ble court propounded that the number of vacancies to be filled up on the bases of reservation in a year including the “carry forward” reservations from the previous years should in no case exceed the ceiling limit of 50%. The Court held that Clause (4) speaks of adequate representation and not proportionate representation.
Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations.
The Indian Parliament further modified the pronouncement by inserting Clause 4B to Article 16 by The Constitution (Eighty-first Amendment) Act, 2000 – 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.
III. Relaxations in promotion of SCs and STs
The Hon’ble court in the judgement clarified that it would not be impermissible for the state to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of administration. The court further clarified that it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration. Such relaxations may be permissible in the matter of direct recruitment but such a course would not be permissible in the matter of promotions.
To override the proposition laid down, Parliament came up with The Constitution (Eighty-second Amendment) Act, 2000 that inserted a proviso to Article 335 – Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or the State.
IV. Economic Reservation
The court pronounced that for the purposes of Article 16, a backward class cannot be determined only and exclusively with reference to economic criteria. Economic criteria may be considered along with and in addition to social backwardness, but it can never be the sole criteria.
However, recently the Parliament modified the ruling by inserting clause 6 to Article 16 by The Constitution (One Hundred and Third Amendment) Act, 2019 – Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.
At this juncture, it is pertinent to conclude that since the day of the pronouncement, the law has been modified to a large extent by subsequent amendments. These amendments have also been challenged in the court of law. While the initial three amendments discussed above have withstood the test of constitutionality in M. Nagraj v. Union of India (2006), the constitutionality of the last amendment is pending for the consideration of the Hon’ble Supreme Court.
The debate around reservations starting from the constituent assembly debates to the latest 10 days marathon hearing in the Hon’ble Supreme Court clarifies that reservation policy was initiated as a temporary provision to achieve the spirit of Article 14. However, even after 70 years of debates, judgements, amendments, legislation and promises of various governments, we haven’t achieved what was intended.
It is disheartening when almost every day the newspaper headlines are about atrocities against people of scheduled castes, scheduled tribes, women and the poor. It is disheartening to look at surveys where the rich are getting richer and the poor are getting poorer. It is equally disheartening to look at the poor pace of development of certain communities amongst SCs and STs in these 70 years.
This brings us to the most obvious conclusion that reservations are here to stay till we achieve what we have promised to over selves under the Constitution but at the same time, the system and the law require a complete overhauling. It is not just Indra Sawhney that needs reconsideration but the legislature and the courts need to take a holistic approach and reconsider the entire Indian reservation set up to bring it at par with the need of the hour.
 AIR 1993 SC 477
 AIR 2007 SC 71