RESERVATION: UNDER ARTICLES 15 AND 16 OF THE CONSTITUTION

By | March 3, 2017

Reservation in simple language implies to an act of withholding, reserving or keeping back some of the seats for the upliftment of status and standard of living of socially and educationally backward sections, classes or groups. Reservation in Indian law is a form of affirmative action whereby a percentage of seats are reserved in 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 major reason for the inclusion of reservation scheme in Indian Constitution is that 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. Thus, to enhance their standards this scheme was made a provision under Article 15 and 16 as follows:
Article 15. : – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. :-

  • The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.
  • No citizen shall, on grounds only of religion, race, caste, sex place of birth or any of them, be subject to any disability, liability, restriction or condition with regards to-
    (a) access to shops, public restaurants, hotels and places of public entertainment; or
    (b) the use 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 the general public.
  • Nothing in this article shall prevent the State from making any special provision for women and children.
  • Nothing in this article or in clause (2) of Article 29 shall 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 and Scheduled Tribes.
  • Nothing in this Article or in sub-clause (g) of clause (1) of article 19 shall prevent the state from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or scheduled tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

“Article 14 embodies the general principle of equality before the law. A specific application of the same principle is provided in Article 15. Article 15 concretises and enlarges the scope of Article 14. It prohibits certain classifications even though they may be justified under Article 14 and expressly asks for making certain classifications which may be impliedly be within the reach of Article 14.”[1]

Article 15(1) would have come in the way of making favourable provisions for backward sections of society. Clause (1) prohibits the State from discriminating against citizens on grounds only of religion, race, sex, caste, and place of birth or any of them. The right guaranteed in clause (1) is conferred on a citizen as an individual and is available against his being subjected to discrimination in the matter of rights, privileges and immunities pertaining to him as a citizen generally.

The Supreme Court in Nain Sukh Das v. State of U.P.[2], invalidated an Act of the State Legislature which provided for elections on the basis of separate electorates for members of different religious communities.

In D.P. Joshi v. State of Madhya Pradesh[3], the Supreme Court held that a law which discriminates on the ground of residence does not infringe Article 15. Place of birth is distinct from residence.

Restriction provided in Clause (2) will apply only if the places mentioned in the Clause are either maintained wholly or partly out of State funds or dedicated to the use of the general public.

Accordingly, a private well or tank does not come within the meaning of this clause. A burial ground shall be a place of public resort if it is maintained wholly or partly by the State, and shall be open for all. Where a place of public resort is not maintained by the State, it must be dedicated by the owner to the use of general public. Places of public resort are places which are frequented by the public like a public park, a public road, a public bus, ferry, public urinal or railway, a hospital, etc. Even before   the commencement of the Constitution in Laksmidhar Mishra v. Rangalal[4], the Privy Council held that there cannot be a dedication only to a limited section of the public like the inhabitants of a village, though such a right can be claimed on the basis of custom.

On grounds only – Attention is drawn to the word ‘only’ in Clause (1) and (2) of Article 15, viz. the State shall to discriminate against any person on grounds only of religion, race caste, sex, place of birth or any of them. It is the effect or operation of the statute which is the determining factor and not its purpose or motive. Accordingly, the court should hold a law repugnant to the guarantee given by Article 15(1) if, as a result of the law, a person is denied any right or privilege solely because of his religion, caste, race, sex or place of birth.

Clause (1), (2) and (3) together it will follow that while there can be no discrimination in general on the ground of sex, special provision in the case of women and children are permissible. Thus it would be no violation of Article 15 if institutions are set up by the State exclusively for women or places are reserved for women at public entertainments or in public conveyances.
Clause (4) was added by the Constitution (First Amendment) Act, 1951 as a result of the decision of the Supreme Court in State of Madras V. Champakam Dorairajan[5]. In that case the Court struck down the communal G.O. of the Madras Government 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. Although the Directive Principles of State Policy embodies in Article 46 of the Constitution lays down that the State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice, the court held that “the Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental rights”. Now clause (4) enables the State to make special provisions for the advancement of socially and educationally backward classes of citizen or for the Scheduled Castes and Scheduled Tribes. Such provisions include reservations or quotas and can be made in the exercise of executive powers without any legislative support.

The two most contentious issues in the application of Article 15(4) as well as Article 16(4) have been: (i) determination of backward classes and (ii) extent or quantum of reservation. Although Article 16(4) does not qualify ‘backward class of citizens’, as does Article 15(4), by the words ‘socially and educationally’, the problem of determining such classes is similar under both the provisions.

From the several judicial pronouncements concerning the definition of backward classes, several propositions emerge. First, the backwardness envisaged by Art. 15(4) in both social and educational and not either social or educational. This means that a class to be identified a backward should be both socially and educationally backward.

In Balaji[6], the Court equated the “social and educational backwardness” to that of the “Schedule Castes and Schedule Tribes”. The Court observed: “It was realized that in the Indian society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Scheduled Tribes and it was thought that some special provision ought to be made even for them.”

Secondly, poverty alone cannot be the test of backwardness in India because by and large people are poor and, therefore, large sections of population would fall under the backward category and thus the whole object of reservation would be frustrated.

Thirdly, backwardness should be comparable, though not exactly similar, to the scheduled Castes and Scheduled Tribes.

Fourthly, ‘caste’ may be a relevant factor to define backwardness, but it cannot be the sole or even the dominant criterion. If classification for social backwardness were to be based solely on caste, then the caste system would be perpetuated in the Indian society. Also this test would break down in relation to those sections of society which do not recognize caste in the conventional sense as known to the Hindu Society.

Fifthly, poverty, occupations, place of habitation, all contribute to backwardness and such factors cannot be ignored.

Sixthly, backwardness may be defined without any reference to caste. As the Supreme Court has emphasized, Art. 15(4) “does not speak of castes, but only speaks of classes”, and that ‘caste’ and ‘class’ are not synonymous. Therefore, exclusion of caste to ascertain backwardness does not vitiate classification if it satisfies other tests.
In M.R. Balaji v. State of Mysore[7], 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 a backward class or not. Backwardness under Article 15(4) must be social and educational, and that social backwardness is, in the ultimate analysis, the result of poverty. One’s occupation and place of habitation could be the other relevant factors in determining social backwardness. The Court invalidated the test of backwardness which was based predominantly, if not solely, on caste.
In this case the validity of a Mysore Government Order reserving 68 per cent of the seats in the engineering and medical colleges and other technical institutions in favour of backward classes including the Scheduled Castes and Scheduled Tribes was challenged. The Supreme Court characterized Art. 15(4) as an exception to Art. 15(1) [as well as to Art. 29(2)]. The Court held:
“A special provision contemplated the Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits. In this matter again, we are reluctant to say definitely what would be provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case.”
Reservation of 68 per cent of seats in that case was found by the Court plainly inconsistent with Article 15(4).

In the State of U.P. V. Pradeep Tandon[8], in admission to medical colleges in U.P. in favour of candidates from- (a) rural areas, (b) hill areas and (c) Uttrakhand area was challenged. The classification was based on geographical or territorial considerations because in governments view the candidates from these areas constituted socially and educationally backward classes of citizens. The Court held that the accent under Article 15(4) was on classes of citizens and the Constitution did not enable the State to bring socially and educationally backward areas within the protection of Article 15(4). It was emphasized that the backwardness contemplated under Article 15(4) was both social and educational and the socially and educationally backward classes of citizens were groups other than the groups based on castes. The traditional unchanging conditions of citizens could contribute to social and educational backwardness. The place of habitation and its environment could be a determining factor in judging the social and educational backwardness. The Court upheld reservations for persons from hill and Uttrakhand areas. It was found that the absence of means of communication, technical processes and educational facilities kept the poor and illiterate people in the remote and sparsely populated areas backward. However, reservation of seats for rural areas was invalidated because the division of the people on the ground that the people in the rural areas were poor and those in the urban areas were not, was not supported by the facts. Further, the rural population was heterogeneous and not all of them were educationally backward.
The question was again considered in Jayasree v. State of Kerala[9], where the Supreme Court was called upon to determine whether the constitutional protection could be extended to a person who belonged to a backward community but the family’s income exceeded the prescribed limit of certain amount per annum. The court held that in ascertaining social backwardness of a class of citizens, it may not be irrelevant to consider the caste of group of citizens. Castes cannot, however, be made the sole or dominant test as social backwardness which results from poverty is likely to be aggravated by considerations of caste. This shows the relevance of both caste and poverty in determining the backwardness of the citizens but neither caste alone nor poverty alone can be the determining test of social backwardness. It was, therefore, held that the impugned order prescribing the income limit was valid, as the classification was based not on income but on social and educational backwardness. IT was recognized that only those among the members of the mentioned castes, whose economic means were below the prescribed limit were socially and educationally backward, and the educational backwardness was reflected to a certain extent by the economic conditions of the group.
Upholding the validity of a total of 49.5 per cent reservation (22.5 per cent for SCs and STs and 27 per cent for SEBCs) in the Mandal Commission case[10], the Court held that barring any extraordinary situation Court mentioned of a far-flung remote area whose population needs special treatment for being brought into the mainstream. For such cases the Court suggested extreme caution and making out of a special case. The 50 per cent limit does not include those members of SEBCs who get selected on their own merit. They are entitled to get adjusted against the open category. The 50 per cent limit, however, applies to all reservations, including those which can be made under Article 16(1), i.e., altogether the reservation should not exceed 50 per cent limit. But this limit applies only to reservations and not to exemption, concessions and relaxations. Therefore 50 per cent limit may not apply to many situations under Article 15(4) and 16(4). For the application of 50 per cent rule a year should be taken as the unit and not the entire strength of the cadre service or the unit, as the case may be. So long as this limit is observed, carry forward rule is permissible.

The policy of reservation has to be operated year-wise and there cannot be any such policy in perpetuity. The State can review from year to year the eligibility of the class of socially and educationally backward class of citizens. Further, it has been held that Art. 15(4) does not mean that the percentage of reservation should be in proportion to the percentage of the population of the backward classes of the total population.
The Court in the Mandal Commission case[11] has clearly held that Article 15(4) and 16(4) are not exceptions to clauses (1) and (2) of those articles or to Article 14. They are rather the means of achieving the right to equality enshrined in those articles.

Following the Court’s direction the Centre and the States have appointed backward class commissions for constant revision of such classes and for the exclusion of creamy layer from amongst them. Unreasonably high standards for determining the creamy layer have been invalidated and wherever any government has failed to implement the requirement of appointing a commission and exclusion of creamy layer it has issued necessary directions compelling them to do so.

In Jagdish Saran V. Union of India[12], a rule reserving 70 per cent of the seats in the post-graduate medical course to Delhi University medical graduates and keeping 30 per cent open to all, including the Delhi University graduates, was challenged by a medical graduate from Madras University as violating Article 14 and 15. Though the rule was not invalidated in view of imperfect, scanty, fragmentary and unsatisfactory materials, Krishna Iyer, J., explained that (i) where the aspiring candidates are not an educationally backward class, institution-wise segregation or reservation has no place in Article 15; (ii) equality is not negated or neglected where special provisions are made with the larger goal of the disabled getting over their disablement consistently with the general good and individual spirit; (iii) exceptional circumstances cannot justify making of reservations as a matter of course in every University and in every course; (iv) the quantum of reservation should not be excessive or societally injurious, measured by the overall competency of the end product, viz., degree holders; (v) the burden is on the party who seeks to justify the ex-facie deviation from equality. Speaking generally, Krishna Iyer, J. asserted that unless there is a vital nexus with equal opportunity, broad validation of university-based reservation cannot be built on the vague ground that all universities are practicing it, or that medical graduates resorted to hunger strike to press for higher percentage of reservation of seats.

Article 16. Equality of Opportunity in matters of public Employment. :-

  • There shall be quality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
  • No citizen shall, on grounds only of religion, race, caste, sex, descent place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
  • Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of , or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
  • 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 service under the State.

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

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

  • Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Article 16 is an instance of the application of the general rule of equality before law laid down in Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for employment or appointment to any office under the State. Explaining the relative scope of Articles 14, 15 and 16. Das, J., said:

“Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Article 15 is more general than Article 16, the latter being confined to matters does not mention descent as one of the prohibited grounds of discrimination as Article 16 does.”[13]

This relationship has been further emphasised in State of kerala v. N.M. Thomas[14], and the Mandal Commission case[15] discussed under Section 15(4) and Section 16(4).

Art. 16(1) is a facet of Art. 14. Arts. 14 and 16(1) are closely inter-connected. Art. 16(1) takes its roots from Art. 14. An important point of distinction between Arts. 14 and 16 is that while Art. 14 applies to all persons, citizens as well as non-citizens, Art. 16 applies only to citizens and not to non-citizens. The goal of Articles 14 and 16 is limited to equality among comparable, a necessary implication of which is permissibility of reasonable classification, having nexus with the object to be achieved.

Art. 16 deals with a very limited subject, viz., public employment. The Scope of Art. 15(1) is much wider as it covers the entire range of state activities. The ambit of Art. 16(2) is restrictive in scope than that of Art. 15(1) because Art. 16(2) is confined to employment or office under the state, meaning services under the Central and State Governments and their instrumentalities, Art. 15 being more general in nature covers many varied situations of discrimination. Further, the prohibited grounds of discrimination under Art. 16(2) are somewhat wider than those under Art. 15(2) because At. 16(2) prohibits discrimination on the additional grounds or descent and residence apart from religion, race, caste, sex and place of birth.
In Clause (1) the general rule is laid down hat there shall be equal opportunity for citizens in matters relating to ‘employment’ or ‘appointment to any office’ under the State. What is guaranteed is the equality of opportunity.

Clause (2) lays down specific grounds on the basis of which citizens are not to be discriminated against each other in respect of any appointment or office under the State. The scope of clause (1) of Article 16 is wider than the scope of clause (2), because discrimination on grounds other than those mentioned in clause (2) of the Article 16 has to be weighed and judged in the light of the general principles laid down in clause (1).

Under Clause (3) Parliament is competent to regulate the extent to which it would be permissible for a State to depart from the law laid down in clause (2). It is Parliament alone which can prescribe such conditions, and that too in regard to State and not the Union appointments.
Explaining the nature of Art. 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 appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the service of the state. Art. 16(4) neither imposes any constitutional duty nor confers any Fundamental Right on any one for claiming reservation.
The equality of opportunity guaranteed by Art. 16(1) is to each individual citizen of the country while Art. 16(4) contemplates special provision being made in favour of the socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. Accordingly, the rule of 50% reservation in a year should be taken as a unit and not the entire strength of the cadre, service or the unit as the case may be.
In Devadasan case[16], the Supreme Court was required to adjudge the validity of the carry forward rule. The carry forward rule envisaged that in a year, 17½ per cent posts were to be reserved for Scheduled Castes/Tribes; if all the reserved posts were not filled in a year for want of suitable candidates from those classes, then the shortfall was to be carried forward to the next year and added to the reserved quota for that year, and this could be done for the next two years. The result of the rule was that in a year out of 45 vacancies in the cadre of section officers, 29 went to the reserved quota and only 16 posts were left for others. This meant reservation upto 65% in the third year, and while candidates with low marks from the Scheduled Castes and Scheduled Tribes were appointed, candidates with higher marks from other classes were not taken.

Basing itself on the Balaji principle, the Supreme Court declared that more than 50 per cent reservation of posts in a single year would be unconstitutional as it per se destroys Art. 16(1). The Court emphasized that in the name of advancement of backward communities, the Fundamental Rights of other communities should not be completely annihilated. The Court held that as Article 16(4) was a proviso or an exception to Art. 16(1), it should not be interpreted so as to nullify or destroy the main provision, as otherwise it would in effect render the guarantee of equality of opportunity in the matter of public employment under Art. 16(1) wholly illusory and meaningless.

The overriding effect of Cl. (4) of Art. 16 on Cls. (1) and (2) could only extend to the making of a reasonable number of reservations of appointments and posts in certain circumstances. A ‘reasonable number’ is one which strikes a reasonable balance between the claims of the backward classes and those of other citizens.
The Court emphasized that each year of recruitment has to be considered by itself and the reservation for backward communities should not be as excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities.

In State of Kerala V. N.M. Thomas[17], the Supreme Court held that it was permissible to give preferential treatment to Scheduled Castes/Tribes under Art. 16(1) outside Art. 16(4). In this case in a dissenting opinion, Subba Rao, J., had express the opinion that Art. 16(4) was not an exception to Art. 16(1), but was a legislative device by which the framers of the Constitution had sought to preserve a power untrammelled by the other provisions of the Article. It was a facet of Art. 16(1) as “it fosters and furthers the idea of equality of opportunity with special reference to under privileged and deprived classes of citizens.

The majority accepted this view of Subba Rao, J. Accordingly, and the Court observed: Art. 16(4) is not in the nature of an exception of Art. 16(1). It is a facet of Art. 16(1) which fosters and furthers the idea of equality of opportunity with special reference to an under privileged and deprived class of citizens. Thus, Art. 16(1) being a facet of the doctrine of equality enshrined in Art. 14 permits reasonable classification just as Art. 14 does. The majority ruled that Art. 16(4) is not an exception to Art. 16(1). Art. 16(1) it permits reasonable classification for attaining equality of opportunity assured by it.

Thomas marks the beginning of a new judicial thinking on Art. 16 and leads to greater concessions to SC, ST and other backward persons. If the Supreme Court had stuck to the view propagated in earlier cases that Art. 16(4) was an exception to Art. 16(1), then no reservation for any other class, such as army personnel, freedom fighters, physically handicapped, could have been made in services.

The fact situated in Thomas was that the Kerala Government made rules to say that promotion from the cadre of lower division clerks to the higher cadre of upper division clerks depended on passing a test within two years. For SCs and STs, exemption could be granted for a longer period. These classes were given two extras years to pass the test. This exemption was challenged as discriminatory under Art. 16(1) on the ground that Art. 16 permitted only reservation in favour of backward classes but it was not a case of reservation of posts for SCs and STs under Article 16(4) and that these persons were not entitled to any favoured treatment in promotion outside Art. 16(4).

By majority, the Supreme Court rejected the argument. It ruled that Art. 16(1) being a facet of Art. 14, would permit reasonable classification and, thus, envisaged equality between the members of the same class of employees but not equality between members of a separate, independent class. Classification on the basis of backwardness did not fall within Art. 16(2) and was legitimate for the purposes of Art. 16(1). Giving preference to an under-represented backward community was valid and would not contravene Arts. 14, 16(1) and 16(2). Art. 16(4) removes any doubt in this respect. The classification of employees belonging to SC and ST for allowing them an extended period of two years for passing the special tests for promotion is a just and reasonable classification having rational nexus to the object of providing equal opportunity for all citizens in matters relating to employment or appointment to public office.
The majority adopted a very liberal attitude in Thomas as regards SCs and STs and backward classes. The result of the pronouncement is to enable the state to give the backward classes a preferential treatment in many different ways other than reservation of posts as envisaged in Art. 16(4). Preferential treatment for one is discriminatory treatment for another and, therefore, it is necessary to draw a balance between the interests of the backward classes and the other classes. The Supreme Court has shown consciousness of this danger and, therefore, has laid down a few criteria which a classification must fulfil, viz.:

  • the basis of the classification has to be backwardness;
  • the preferential treatment accorded to backward classes has to be reasonable and must have a rational nexus to the object in view, namely, adequate representation of the under-represented backward classes;
  • The overall consideration of administrative efficiency should be kept in view in giving preferential treatment to the backward classes.

It is obvious that in Thomas, the Court has taken a more flexible view of Art. 16(1) than had been taken by it is earlier cases. It is now clearly established that Art. 16(4) does not cover the entire field covered by Arts. 16(1) and (2) and some of the matters relating to employment in respect of which equality of opportunity is guaranteed by Arts. 16(1) and (2) do not fall within Art. 16(4).

In Akhil Bhartiya Soshit Karamchari Sangh (Railway) V. Union of India,[18] the Supreme Court again went into the question of reservation in public services vis-à-vis Art. 16. The Court upheld reservation of posts at various levels and making of various concessions in favour of the members of the SC and ST.

The Court reiterated the Thomas proposition that under Art. 16(1) itself, the state may classify, “based upon substantial differentia, groups or classes” for recruitment to public services and “this process does not necessarily spell violation of Article 14 to 16”
Art. 16(2) expressly forbids discrimination on the basis of ‘caste’. SC and ST are not castes within the ordinary meaning of caste. These are backward human groups. There is a great divide between these persons and the rest of the community.

Thus, reservation in selection posts in railways for SC and St was held valid. The quantum of reservation (17½%) in railway services for SC and ST was held not excessive and the field of eligibility was not too unreasonable. The carry forward rule for three years was held not bad.

Under the Carry forward rule, the quota for SC and ST could go up to a maximum of 66% of posts. This was upheld with the remark that figures on paper were not so important as the facts and circumstances in real life which showed that the quota was never fully filled. But this fixation was subject to the rider that, as a fact, in any particular year, there would not be a substantial increase over 50% in induction of reserved candidates. Here the Court took the actual facts, rather than the paper rules, into consideration.

In Indra Sawhney[19], the Supreme Court has taken cognizance of many complex but very momentous questions having a bearing on the future welfare and stability of the Indian Society. The Supreme Court has delivered a very thoughtful, creative and exhaustive opinion dealing with various aspects of the reservation problem. Basically reservation in government services, is anti-meritocracy, because when a candidate is appointed to a reserved post it inevitably excludes a more meritorious candidate. But reservation is now a fact of life and it will be the ruling norm for years to come. The society may find it very difficult to shed the reservation rule in the near future. But the Court’s opinion has checked the system of reservation from running riot and has also mitigated some of its evils.

Three positive aspects of the Supreme Court’s opinion may be highlighted:

  • the over-all reservation in a year is now limited to a maximum of 50%.
  • amongst the classes granted reservation, those who have been benefited from reservation and have thus improved their social status (called the ‘creamy layer’ by the Court), should not be allowed to benefit from reservation over and over again. This means that the benefit of reservation should not be misappropriated by the upper crust but that the benefit of reservation should be allowed to filter down to the lowliest so that they may benefit from reservation to improve the position.
  • Three, an element of merit has now been introduced into the scheme of reservation. This has been done in several ways, e.g.:
  1. promotions are to be merit-based and are to be excluded from the reservation rule;
  2. certain posts are to be excluded from the reservation rule and recruitment to such posts is to be merit based;
  3. Minimum standards have to be laid down for recruitment to the reserved posts. IN facts, the Courts has insisted that some minimum standards must be laid down even though the same may be lower than the standards laid down for the non-reserved posts.

In his opinion in Indra Sawhney, Jeevan Reddy, J., has emphasized upon the member of a backward class reaching an “advanced social level or status”, he would no longer belong to the backward class and would have to be weeded out. The Court has opined that exclusion of creamy layer, i.e., socially advanced members, will make the class a truly backward class and would more appropriately serve the purpose and object of Art. 16(4). Jeevan Reddy, J., has stated that there are sections among the backward classes who are highly advanced socially and educationally, and they constitute the forward section of the community. These advanced sections do not belong to the true backward class. “After excluding them alone, would be the class be a compact class. In fact, such exclusion benefits the truly backward.”
Accordingly to Jeevan Reddy, J., the exclusion of the creamy layer must be on the basis of social advancement and not on the basis of economic interest alone. It is difficult to draw a line where a person belonging to the backward class ceases to be so and becomes part of the ‘creamy layer’.
In Ashoka Kumar Thakur V. State of Bihar[20], the Supreme Court has assessed the validity of unrealistically high levels of income or holdings of other conditions prescribed by the Legislatures of UP and Bihar as criteria to identify the creamy layer. For example, while the Supreme Court in the Mandal case has categorically said that the Children of IAS or IPS, etc. without anything more could not avail the benefit of reservation, in the scheme drawn in UP and Bihar, a few more conditions were added for falling in the creamy layer, such as, he/she should be getting a salary or Rs. 10,000/- p.m. or more; the wife or husband to be a graduate and owing a house in an urban area. OR, if a professional doctor, surgeon, lawyer, architect, etc., he should be having an income not less than Rs. 10 lakh, his/ her spouse is a graduate and having family property worth Rs. 20 Lakhs. Similar conditions were added in case of others, such as, traders, artisans, etc.

The Supreme Court has quashed these conditions as discriminatory. The Court has ruled that these conditions laid down by the two States have no ‘nexus’ with the object sought to be achieved. The criterion laid down by the two States to identify the creamy layer are violative of Art. 16(4), wholly arbitrary, violative or Art. 14, and against the law laid down by the Supreme Court in the Mandal case, where the Court has expressed the view that a member of the All India Service without anything more ought to be regarded as belonging to the “creamy layer”.

By – Monika Sharma

[1] V. N. Shukla, Constitution of India, 10th Edn., p. 70

[2] AIR 1953 SC 384

[3] AIR 1955 SC 334. See also Arun v. State of Karnataka, AIR 1977 Kar. 174

[4] AIR 1950 PC 56: 76 IA 271

[5]AIR 1951 SC 226

[6] M.R. Balaji v. State of Mysore, AIR 1963 SC 649

[7] AIR 1963 SC 649

[8] (1975) 1 SCC 267: AIR 1975 SC 563. See also Arti Sapru v. State of J& K, AIR 1981 SC 1009

[9] AIR 1976 SC 2381

[10] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477

[11] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477

[12] AIR 1980 SC 820

[13] Gazula Dasaratha Rama Rao v. State of A.P., AIR 1961 SC 564

[14] AIR 1976 SC 490

[15] Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217

[16] Devdasan v. Union of India, AIR 1964 SC 179; B.N. Tewari v. Union of India, AIR 1965 SC 1430

[17] AIR 1976 SC 490

[18] (1981) 1 SCC 246: AIR 1981 SC 298

[19] Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217

[20] (1995) 5 SCC 403

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