Reservation Jurisprudence

By Kishore Kulkarni

The date 16th November 2023 marks 31 years of the landmark judgment of Indra Sawhney which upheld the constitutional validity of reservations for backward classes. Historically, at the outset, the upper caste, due to their dominance in public sphere, were perceived to be having higher social status than  those who did not belong to that category and were, perhaps, treated in low stand, in terms of societal hierarchy. The sole purpose of reservation was to bring down the preponderance of the upper caste in public administration. The Supreme Court uses the term 'Historical Compensation' or 'Compensatory Discrimination' to justify the concept of reservation and reiterated multiple times that reservation is an affirmative action by the state to ensure that the have not's of the society stand in equal footing with the have's. The concept of Indian reservation revolves around three words 'Social', 'Economical' and 'Educational', So, people who were denied these aspects are eligible for special treatment what we call today as 'reservation'. They are considered as the 'have not's' of the society. The term historical compensation, in the sense, means that due to the oppression faced by the people because of their caste, religion etc for thousands of years, need to have an preference to compete with general category and by reservation the state is compensating for the backwardness faced by them. 

The first instance of a legitimate and a formal setup of reservation was back in 1902 by Maratha ruler Shahu Ji, where, In the province of Kolhapur, 50 percent of governmental administrative posts were reserved to backward classes. Although, the term 'backward class' was defined by the Miller's committee in 1919, It is subjected to variety of debates and discussions. Later the Madras province, like that of Kolhapur, adopted reservation in early 1920's. After, the constitution came to be in existence, First instance of controversy spark, In the same state of Madras wherein, the state reserved seats in medical and engineering institutions on the basis of caste of a person. This meant that a person of higher caste, though eligible, in terms of merit, was deemed to be ineligible because of his caste. The Supreme court held that in the question involving the admission of student to a educational institution, It was the individual right of a citizen and seats cannot be segregated in the name of case. The court also held that challenged reservation system is in conflict with Article 15 of the Constitution. The immediate effect of this Judgment was insertion of Article 15(4), which legalised state to make provisions for advancement of socially and educationally backward classes.

The state of Tamil Nadu (TN) is the only state to have reservation more that 60 percent for various posts. Now, when state has the power to make reservation for backward classes the main question which revolved around was to what extent or what percent of seats can be reserved. The court answered this doubt in landmark M.R.Balaji's case, where the court held that reservations cannot exceed more that 50 percent in any case. Fifty percent was the ceiling limit to make special provisions, excessive of that would impact equality of opportunity. The state of TN still continues to have reservation more than 60 percent because, the amendment was inserted in the 9th schedule, which protected it from judicial review. Having understood reservation and its purpose, imagine a situation where the reserved seats of a year are vacant and not filled, can these seats or perhaps reservation taken forward and continue for the next year. In the sense, if 20 seats were reserved, and later 5 seats were vacant in the end of a year can the remaining 5 seats be utilized with the next year's 20 seats making total 25 seats reserved. This was called as the carry forward principle and was rejected by the court. The court held that the vacancy of the reserved seats cannot be added to the subsequent year's as addition to the sanctioned seats.

When we do the bare reading of Article 16 of the constitution it reads as equality of opportunity in public employment for citizen whereas in the same article the clause (4) enables the state to make special provision for backward classes. Similar to it is Article 15 and 15 (3). The supreme court held that Article 16(4) is not an exception but a facet of Article 16. This facet paves way to achieve the purpose of Article.

With the existing reservation for the SC's and ST's, the quest now began to study the remaining backward classes other than those who were eligible for reservation under current scheme. The Kelkar commission under the chairmanship Kaka Kelkar was appointed to study the backward classes. The committee submitted its report in the year 1955 recommending advancement of certain people who belonged to backward class. This recommendation was not considered by the Government. In late 1970's the second backward class commission was appointed under the chairmanship of B.P. Mandal popularly known as Mandal Commission. The Mandal Commission, with the help of Kelkar report and census data identified around 3700 castes that were backward and submitted its report on December 1980. The committee report was accepted in 1990. The government issued a memorandum reserving 27% of seats for Other Backward Classes (OBC).  The Supreme court upheld the constitutional validity of Mandal report and legitimized caste based reservations. In 1991, The government modified the memo and provided additional 10% reservations economically weaker sections. Later The Apex Court had to come up with a concept called 'creamy layer" to prevent misutilization of reservations for OBC's. Creamy Layer, much like Poverty line, is a level of backwardness and people, above certain degree of backwardness are excluded from reservation benefits. Creamy layer people are people who belong to a backward community but more privileged than others making them non eligible for OBC reservations.

The landmark change in the Reservation Jurisprudence in past decade is the recognition of third gender and reservation eligibility for them. In 2014, The supreme Court recognised the transgender community and legally recognised as Third gender. The community, being a backward and a oppressed class from long time, were eligible for reservations. In 2021, Karnataka became the first state to grant 1% transgender reservation in various posts. The Indian Reservation system, as I have mentioned in beginning, revolves around three words 'Social', 'Economical' and 'Educational'. Apart from the existing criteria for reservation, there was yet another aspect to be considered, which is, the income level. 

In 2019, The union Governments introduces 103rd Constitutional Amendment act which introduced 10% reservations for Economically Weaker Sections popularly known as EWS reservation. People who belonged to the non minority castes, or who were not eligible for reservations under previous schemes because of their class, were made eligible. In the sense, The General Category, under certain level of income were named EWS and allowed for reservations. The 10% reservation was solely for the General category, the SC's, ST's and OBC's were not part of the EWS reservations.  This was challenged in the supreme court of being discriminatory, and the Court with a 3:2 majority upheld the constitutional validity of the 103rd Constitutional Amendment and opined that it is not discriminatory for other classes. The court has reiterated several times that reservations must not continue for longer period or it is not permanent in nature, It has to be, at some point of time, either reduced or scrapped.

Thank You for your time.

Kishore Kulkarni

BA LLB Student 

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