Reservation in India: Articles, Commissions and Judgments

Reservation is the set of special provisions by which the Constitution of India allows the State to keep a share of seats in educational institutions, posts in public employment and seats in elected bodies for classes of citizens who have been kept out of them for centuries. It is not an exception grudgingly allowed to the right to equality; the Supreme Court has read Article 15(4), Article 15(5), Article 16(4) and the clauses added in 2019 as facets of equality itself, because treating unequals alike is as unfair as treating equals differently. For an examination, the topic is a map of articles, amendments, commissions and judgments, and almost every question comes from that map.

The constitutional basis

Article 14 guarantees equality before the law, Article 15(1) forbids discrimination on grounds of religion, race, caste, sex or place of birth, and Article 16(1) guarantees equality of opportunity in matters of public employment. The enabling clauses sit beside them. Article 15(4), inserted by the Constitution (First Amendment) Act, 1951 after the Supreme Court struck down communal quotas in State of Madras v. Champakam Dorairajan, lets the State make special provision for the advancement of socially and educationally backward classes and for the Scheduled Castes and Scheduled Tribes. Article 15(5), added by the Ninety-third Amendment in 2005, extends that power to admission in private educational institutions, aided or unaided, leaving out minority institutions. Article 16(4) allows reservation of appointments or posts for any backward class not adequately represented in the services of the State. Article 46, a Directive Principle, asks the State to promote with special care the educational and economic interests of the weaker sections, and Article 335 says the claims of Scheduled Castes and Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration.

From Kalelkar to Mandal: the OBC quota

Article 340 is the source of every backward classes commission. The first, appointed in 1953 under Kaka Kalelkar, submitted its report in 1955 and was set aside because its criteria were thought vague. The second, appointed in 1979 under B. P. Mandal, reported in 1980 and recommended twenty-seven per cent of central government posts for the Other Backward Classes, a figure chosen so that the total would stay within the fifty per cent limit the courts had laid down. The recommendation was announced for central services in 1990 and was immediately challenged. The quota in central educational institutions came a step later, through Article 15(5) and the Central Educational Institutions (Reservation in Admission) Act, 2006, which the Supreme Court upheld in Ashoka Kumar Thakur v. Union of India in 2008.

Indra Sawhney and the fifty per cent rule

Indra Sawhney v. Union of India, decided by a nine-judge bench in 1992, is the leading case. It upheld the twenty-seven per cent quota for the Other Backward Classes, held that a caste may be treated as a class once its social backwardness is shown, and ordered that the advanced among the backward, the creamy layer, be kept out so that the benefit reaches those who need it. It also said that reservation should ordinarily not exceed fifty per cent of the available seats except in extraordinary situations, that it belongs to entry into service and not to promotion, and that backwardness under Article 16(4) is social and educational, not economic alone. The fifty per cent figure had first been suggested in M. R. Balaji v. State of Mysore in 1963; the carry forward rule that breached it was struck down in T. Devadasan v. Union of India in 1964.

Reservation in promotion

Parliament answered the parts of Indra Sawhney it disagreed with by amending the Constitution. The Seventy-seventh Amendment of 1995 inserted Article 16(4A) to allow reservation in promotion for the Scheduled Castes and Scheduled Tribes; the Eighty-first Amendment of 2000 added Article 16(4B) so that backlog vacancies carried forward to a later year are treated as a separate class outside the ceiling of that year; the Eighty-second Amendment of 2000 restored the power to relax qualifying marks under Article 335; and the Eighty-fifth Amendment of 2001 added consequential seniority to Article 16(4A). In M. Nagaraj v. Union of India (2006) the Supreme Court upheld these amendments but required the State to show backwardness, inadequacy of representation and continued administrative efficiency before using the power. Jarnail Singh v. Lachhmi Narain Gupta (2018) removed the requirement of proving the backwardness of the Scheduled Castes and Scheduled Tribes, since the Presidential list itself establishes it, and applied the creamy layer test in promotions.

The EWS quota and the commissions

The Constitution (One Hundred and Third Amendment) Act, 2019 inserted Article 15(6) and Article 16(6), which let the State reserve up to ten per cent of seats and posts for economically weaker sections of citizens who are not covered by the existing caste-based quotas, the economic criteria being notified by the State. A five-judge bench upheld the amendment in Janhit Abhiyan v. Union of India in 2022 by a majority of three to two. Three constitutional commissions watch over the system: the National Commission for Scheduled Castes under Article 338 and the National Commission for Scheduled Tribes under Article 338A, separated by the Eighty-ninth Amendment of 2003, and the National Commission for Backward Classes, given constitutional status under Article 338B by the Hundred and Second Amendment of 2018. The same amendment inserted Article 342A for a central list of socially and educationally backward classes, and the Hundred and Fifth Amendment of 2021 made it clear that a state may keep and notify its own list.

Reservation in legislatures and local bodies

Seats are reserved for the Scheduled Castes and Scheduled Tribes in the Lok Sabha by Article 330 and in the state legislative assemblies by Article 332, in proportion to their population; there is no reservation for the Other Backward Classes in Parliament. Article 334 fixes the period for which those seats stay reserved, and it has been extended by amendment several times, the Hundred and Fourth Amendment of 2019 being the latest, which also ended the nomination of Anglo-Indian members. In the panchayats and municipalities, Articles 243D and 243T reserve seats for the Scheduled Castes and Scheduled Tribes in proportion to population, allow the state legislature to reserve seats for backward classes, and reserve not less than one-third of all seats and of the offices of chairperson for women.