ICFAI LAW SCHOOL

THE ICFAI UNIVERSITY

DEHRADUN

(2020)

RESERVATION UNDER INDIAN CONSTITUTION: AN ANALYSIS

SEMINAR PAPER

BBA LL.B (HONS.)

Submitted by: AYUSH RANJAN (16FLICDDN01094)

 DECLARATION

It is hereby declare that this research work entitled “RESERVATION UNDER INDIAN
CONSTITUTION: AN ANALYSIS is based on original research undertaken by me and it
has not been submitted in any University for any degree or diploma.
 CERTIFICATE

This is to certify that this work incorporated in this Dissertation on the topic
“RESERVATION UNDER INDIAN CONSTITUTION : An Analysis” Submitted by
AYUSH RANJAN of BBA.LL.B (V Year) 2014-2019 is a bonafide work of him & was
carried out sincerely & honestly under my guidance & supervision.

DATE : 21st November 2020 (Prof. Yugal Kishore)

(Mrs. Monica Kharola)
 ACKNOWLEDGEMENT

With profound sentiments of gratitude, I acknowledge the, suggestion monitoring and

constant encouragement given by my guide Mrs MONICA KHAROLA throughout the
course of this report because of whom I was able to complete the task of writing this
Dissertation report work successfully. I am also grateful to him for his timely and exemplary
guidance and relevant knowledge regarding various aspects relating to this topic. Also, I will
fail in my duty if I don’t thanks the Library staff of ICFAI University, who have warmly
facilitated the task by providing various books & journals, leading to successful completion
of the this report.

With Thanks
(Ayush Ranjan)
 LIST OF ABBREVIATION

A.I.R All India Report

& And
Anr Another
Art. Article
HC High Court
Ors. Others
Raj. Rajasthan
SC Supreme Court
SCJ Supreme Court Journal
SCR Supreme Court Reporter
SCC Supreme Court Cases
UOI Union Of India
UP Uttar Pradesh
V Versus
 Contents
1. INTRODUCTION...............................................................................................................................7
2. CHAPTER 1......................................................................................................................................9
DEVELOPMENT OF RESERVATIONS POLICY IN THE PRE- INDEPENDENCE PERIOD..........................9
2.1. The Caste System....................................................................................................................9
2.2. Pre-Independence Initiatives to Eliminate Untouchability....................................................10
3. CHAPTER II....................................................................................................................................16
3.1. INDEPENDENCE AND THE CONSTITUTION: FRAMING RESERVATIONS POLICY......................16
3.2. Reservations under the Constitution.....................................................................................17
Other Legal Protections for Scheduled Castes and Scheduled Tribes...........................................18
4. CHAPTER III...................................................................................................................................20
LANDMARK CASES ON RESERVATION...........................................................................................20
5. CHAPTER IV...................................................................................................................................25
RESERVATION POLICY AND EXCUSION OF CREAMY LAYER...........................................................25
6. CHAPTER V....................................................................................................................................28
DETERMINATION OF CREAMY LAYER CLASS.................................................................................28
7. CHAPTER VI...................................................................................................................................33
ONE HUNDRED THIRD CONSTITUTIONAL AMENDMENT ACT.......................................................33
8. CHAPTER VII..................................................................................................................................36
AN ASSESSMENT OF RESERVATIONS/ CONCLUSION.....................................................................36
9. Bibliography..................................................................................................................................41
 INTRODUCTION

In early September 2001, world television news viewers saw an unusual sight. A delegation
from India had come to the United Nations Conference on Racism in Durban, South Africa,
not to join in condemnations of Western countries but to condemn India and its treatment of
its Dalits (oppressed), as Indians better known abroad as “untouchables” call themselves. The
Chairman of India’s official but independent National Human Rights Commission thought
the plight of one-sixth of India’s population was worthy of inclusion in the conference
agenda, but the Indian government did not agree. India’s Minister of State for External
Affairs stated that raising the issue would equate “casteism with racism, which makes India a
racist country, which we are not.”1
Discrimination against groups of citizens on grounds of race, religion, language, or national
origin has long been a problem with which societies have grappled. Religion, over time, has
been a frequent issue, with continuing tensions in Northern Ireland and in Bosnia being but
two recent and still smoldering examples. Race-based discrimination in the United States has
a long history beginning with evictions of Native Americans by European colonists eager for
land and other natural resources and the importation of African slaves to work the land.
While the framers of the U.S. Constitution papered over slavery in 1787, it was already a
moral issue troubling national leaders, including some Southern slave owners like
Washington and Jefferson. On his last political mission, the aging Benjamin Franklin lobbied
the first new Congress to outlaw slavery.2
Just weeks before the Constitutional Convention, the last Congress of the Confederation
passed the Northwest Ordinance. It was, in part, a successful effort to bar slavery by law from
a large part of the new nation. Following the Civil War, three amendments were added to the
U.S. Constitution to end slavery and protect civil liberties of all citizens under federal law.
Congress established and funded a government agency, the Freedmen’s Bureau, to help bring
former slaves into the mainstream of American life. Yet with the end of Reconstruction in
1876, the United States relapsed into decades of indifference or worse towards its black
citizens. Varying in intensity by region, this included denial of voting rights, intimidation and
lynchings, denial of access to adequate public services (including education and water

1
“Indian Groups Raise Caste Question,” BBC News, September 6, 2001
2
Article 6 of the Northwest Ordinance of 1787 reads: “There shall be neither slavery nor involuntary servitude
in the said territory . . .”
supply), hostile treatment by police and courts, and widespread discrimination in employment
and housing.[ CITATION Jag99 \l 1033 ]
Not until nearly a century after the Civil War did the United States begin meaningfully to
address grievances of black Americans. Black activism and changing white attitudes were
central to the process and led to landmark civil rights laws in the 1960s. Since then, a broad
system of “affirmative action” has come into being in the public and private sectors. It in
effect reserves a portion of available jobs for African Americans (and other minorities viewed
as “disadvantaged”). Laws prohibit workplace discrimination, “diversity” has become a
watchword, and a social “safety net” assists those in need. However, despite much progress,
abundant national wealth, laws, and good intentions, discrimination remains a serious issue
for American society.3
The roots of India’s untouchability problem recede beyond history as does the caste system
that gave rise to it. This is different from the American setting, where the population is not
divided into a “natural” hierarchy conforming to religious belief, with the lowest sector
regarded as polluted and “untouchable.” Nevertheless, there are some parallels with what
happened in the United States. Untouchability inspired many Indians to work for reform,
including leaders of the independence movement like Nehru and Gandhi. Efforts to help the
Dalits began in the 19th century, first under British colonial administration and, later, from
1947, under India’s independent government. Untouchability, like slavery in America, was
prohibited by constitutional provision. As in the United States, laws, administrative
regulations, and commissions have anchored official efforts. At the center is a network of
government-managed “reservations,” positions set aside by quota in legislative bodies, in
government service, and in schools at all levels. The hope is that the “Scheduled Castes,” as
Dalits are officially known, can use such opportunities as springboards for better lives for
themselves and for integrating themselves more fully into the life of the country.4

3
C.J. Fuller, The Camphor Flame: Popular Hinduism and Society in India (Princeton: Princeton University Press,
1992), 12
4
Andre Beteille, Caste, Class and Power: Changing Patterns of Stratification in a Tanjore Village (Delhi: Oxford
University Press, 1996), 46
 CHAPTER 1

DEVELOPMENT OF RESERVATIONS POLICY IN THE PRE-

INDEPENDENCE PERIOD.

The Caste System

Hindu society is divided into four varna, or classes, a convention which had its origins in the
Rig Veda, the first and most important set of hymns in Hindu scripture which dates back to
1500-1000 B.C. At the top of the hierarchy are the Brahmins, or priests, followed by the
Kshatriyas, or warriors. The Vaisyas, the farmers and artisans, constitute the third class. At
the bottom are the Shudras, the class responsible for serving the three higher groups. Finally,
the Untouchables fall completely outside of this system. It is for this reason that the
untouchables have also been termed avarna (“no class”).[ CITATION Kus92 \l 1033 ]
Jati, or caste, is a second factor specifying rank in the Hindu social hierarchy. Jatis are
roughly determined by occupation. Often region-specific, they are more precise than the
sweeping varna system which is common across India and can be divided further into
subcastes and sub-subcastes. This is also the case among untouchables. Andre Beteille
defines caste as “a small and named group of persons characterized by endogamy, hereditary
membership, and a specific style of life which sometimes includes the pursuit by tradition of
a particular occupation and is usually associated with a more or less distinct ritual status in a
hierarchical system.”5
Jatis in the three highest varnas in the hierarchy—Brahmins, Kshatriyas, and Vaisyas—are
considered “twice-born” according to Hindu scripture, meaning they are allowed to
participate in Hindu ceremonies and are considered more “pure” than the Sudras and
“polluting” untouchables. This concept of pollution versus purity governs the interaction
between members of different castes. The touch of an untouchable is considered defiling to
an upper-caste Hindu. In southern India, where caste prejudice has been historically most
severe, even the sight of an untouchable was considered polluting. Untouchables usually

5
Since the early 20th century, several terms have been used to describe the same group of people. The earliest
and still most widely known terms are “untouchables” and “outcastes.” Gandhi, because of the unfavorable
connotation of “untouchable,” dubbed them “harijans” (children of God). From the 1930s, they have also been
known collectively as “scheduled castes,” after the schedules appended to laws affecting their status. In the
1970s, they came to call themselves “Dalits” (the oppressed).
handled “impure” tasks such as work involving human waste and dead animals. As a result,
until reforms began in the 19th century, untouchables were barred from entering temples,
drawing water from upper-caste wells, and all social interaction with upper-caste Hindus
(including dining in the same room). These social rules were strictly imposed and violators
were severely punished; some were even killed. Despite constitutional prohibitions and laws,
most recently the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of
1989, violence and injustices against untouchables continue today, particularly in rural areas
of India.6

Pre-Independence Initiatives to Eliminate Untouchability

Christian missionaries took the lead in adopting the cause of the Depressed Classes seeking to
provide welfare for them. By the 1850s, either inspired or shamed into action by the
missionaries’ example, Hindu reformers emerged. Jyotiba Phule was one such activist, and in
1860 he called attention to the plight of victims of caste discrimination in Maharashtra.
British and other Indian leaders soon followed suit, spurred on in part by reports of
discrimination against Indians in South Africa. Thus, in the 1880s, British officials set up
scholarships, special schools, and other programs to benefit the Depressed Classes. Forward-
thinking maharajas (princes) in “native” states like Baroda, Kolhapur, and Travancore, which
were not under direct British administration, established similar initiatives. Ambedkar, from
the Mahar caste of Maharashtra, was one beneficiary. The Mahars had a long association with
the British-organized Indian Army, in which Ambedkar’s father and grandfather had served.
One result was that Ambedkar was able to attend government primary and secondary schools.
The Maharaja of Baroda, recognizing Ambedkar’s gifts for scholarship, sponsored his study
abroad, first at Columbia University in New York, where Ambedkar obtained a Ph.D. in
Economics, and later at London University, where he earned a DSc. and entrance to the Bar
from Grey’s Inn.[ CITATION Ant97 \l 1033 ]
As early as 1858, the government of Bombay Presidency, which included today’s
Maharashtra, declared that “all schools maintained at the sole cost of Government shall be
open to all classes of its subjects without discrimination.” Although a 1915 press note
revealed that this policy was not being enforced in one case, a Mahar boy was not allowed to
enter the schoolroom, but was relegated to the veranda the Bombay government maintained

6
Thomas Sowell, Preferential Policies: An International Perspective (New York: William Morrow and Company,
Inc., 1990), 92
its position on the issue, and, in 1923, announced a resolution cutting off aid to educational
institutions that refused admission to members of the Depressed Classes. Other initiatives
followed including the 1943 Bombay Harijan Temple Entry Act and the 1947 Bombay
Harijan (Removal of Civil Disabilities) Act. In the United Provinces, now Uttar Pradesh, the
1947 United Provinces Removal of Social Disabilities Act was put in force.7

The Government of India Act of 1919

Caught in the turmoil of World War I, Britain focused its attention on Europe, not on India.
Nevertheless, the British passed important legislation during this turbulent period that would
have a significant impact on the development of Indian governmental institutions: The
Government of India Act of 1919.[ CITATION SRB \l 1033 ]
The Act had its immediate origins on August 20, 1917. With Britain in a war for survival in
Europe, in need of continued support from India and the Empire, and desiring to avoid
confrontation with the Indian independence movement, Secretary of State for India Edwin
Montagu, in an announcement in Parliament, defined Britain’s India policy as:
Increasing the association of Indians in every branch of the administration and the gradual
development of self-governing institutions with a view to the progressive realization of
responsible government in India as an integral part of the British Empire. Montagu and Lord
Chelmsford, then Viceroy, embarked on an analysis of the Indian situation, eventually laying
out proposals forming the basis for the 1919 Government of India Act. Despite mention of
greater Indian participation in politics, the 1919 Act still contained provisions guaranteeing a
continued active British presence and dominance: While we do everything that we can to
encourage Indians to settle their own problems for themselves we must retain power to
restrain them from seeking to do so in a way that threatens the stability of the country.

The Simon Commission

In keeping with the 1919 Government of India Act, the British government in 1927 appointed
a commission to assess the Montagu-Chelmsford reforms and “whether, and to what extent it
was desirable to establish the principle of responsible government, or to extend, modify, or

7
National Commission for Scheduled Castes and Scheduled Tribes, Fourth Report: 1996-97 and 1997-98, New
Delhi, 1998, 232.
restrict the degree of responsible government existing therein.” The seven-member
commission was headed by John Simon, MP, and included MP Clement Attlee.
This “all-white” panel proved controversial. The competence of the nominees was not at
issue, but rather the lack of any Indian representatives. In protest, Gandhi and the Congress
Party, the dominant Indian political party, boycotted the Commission and protest
demonstrations in India were widespread.[ CITATION Sir31 \l 1033 ]
The Simon Commission toured every Indian province. Its findings were based largely on
memoranda from the Government of India, from committees appointed by the provincial
legislative councils, and from non-official sources. The final report contained
recommendations for reform.8
One area the Commission identified was the need to safeguard minorities and other
disadvantaged members of Indian society. Noting that “the spirit of toleration has made little
progress in India,” the Simon report detailed the plight of the Depressed Classes in particular,
which it saw not only as a problem of caste, but as an issue with distinct political overtones.
Based on its assumption that the “true cause of communal conflict is the struggle for political
power and for the opportunities which political power confers,” the committee saw the
improvement of the Depressed Classes’ situation as hinging on increased political influence.
Several options emerged, including pursuing a system of nomination, creating separate
electorates, and reserving seats in government within a general electorate.
In its consultations, the Simon Commission found that most provincial governments
supported a nominating system. The Government of Bihar and Orissa, for example, asserted
that a nomination was best since the Depressed Classes were too backward to choose their
own representatives. Despite these arguments, the Commission discarded the idea, arguing
that the Depressed Classes needed opportunities for training in self-government.

The Round Table Conferences

In 1931, sixth months after the Simon Commission’s report was published, a Round Table
Conference convened in London to review the Commission’s proposals and how they might
be incorporated into a new constitution. This time, there were Indian delegates from various
interest groups. Ambedkar represented the Depressed Classes, along with Rai Bahadur R.

8
BBC News, 25 September 2000 and Manpreet Singh’ “Justice Delayed for Dalits,”Christianity Today, Vol.44,
Issue 13, November 13, 2000, 34.
Srinivasan. Gandhi and his Indian National Congress were conspicuously absent, refusing to
participate on the grounds that Congress alone represented Indian opinion.
How to treat minorities was a major topic at the conference. Prime Minister Ramsay
MacDonald chaired a subcommittee to focus on this problem. Ambedkar and Srinivasan
appealed for separate electorates and adult suffrage. Separate electorates were designed to be
temporary. After ten years, general electorates with reserved seats would replace separate
electorates with the consent of the Depressed Classes and enfranchisement of all adults. In
the end, the subcommittee could not reach an agreement, a general reflection of the entire
conference, which was inconclusive.[ CITATION Vir08 \l 1033 ]
A second Roundtable Conference convened eight months later. Ambedkar and Srinivasan
again attended. Gandhi also joined, representing the Congress. Having taken up the cause of
the Harijans (“children of God,” a term the Congress leader coined), Gandhi adamantly
opposed separate electorates, especially for the Depressed Classes. Arguing that
untouchability was inseparable from Hinduism, he linked creation of separate electorates for
the Depressed Classes to alleged British “divide and rule” strategy and asserted that the group
should be included in the main body of Hindus. As a result of staunch opposition from
Gandhi and the Congress on separate electorates, the second conference was inconclusive and
the minority issue remained unresolved.9

A Turning Point: MacDonald’s Communal Award and the Poona Pact

MacDonald announced the Communal Award on August 16, 1932. Based on the findings of
the Indian Franchise Committee, called the Lothian Committee, the Communal Award
established separate electorates and reserved seats for minorities, including the Depressed
Classes which were granted seventy-eight, reserved seats. Unlike previous communal
electorates set up for Muslims and other communities, the Award provided for the Depressed
Classes to vote in both general and special constituencies, essentially granting a “double
vote.” However, in keeping with earlier special concessions to minorities, MacDonald
asserted:
“His Majesty’s Government do not consider that these special Depressed Classes
constituencies will be required for more than a limited time. They intend that the constitution

9
Department of State, U.S.A., Country Reports on Human Rights Practices, 2001, (Washington, D.C.,
Government Printing Office, 2019i), <http://www.state.gov/g/drl/rls/hrrpt/2001/sa/8230.htm> Accessed on
March 13, 2019.
shall provide that they shall come to an end after 20 years if they have not previously been
abolished under the general powers of electoral revision.”

Gandhi, who was in the Yeravada Prison in the city of Poona at the time because of his civil
disobedience campaign, reacted by declaring a hunger strike “unto death.” In his opposition
to the Award, he compared the creation of separate electorates for the Depressed Classes to
the “injection of a poison that is calculated to destroy Hinduism and do no good whatever.”
Others were similarly critical of the Award. Ambedkar felt too few seats were reserved for
the Depressed Classes. Rajah, another leader of the Depressed Classes, opposed the
separation of the community from the Hindu fold.10

The Government of India Act of 1935

The reservation of seats for the Depressed Classes was incorporated into the Government of
India Act of 1935, legislation by the British designed to give Indian provinces greater self-
rule and set up a national federal structure that would incorporate the princely states. The Act
went into force in 1937. The Act brought the term “scheduled castes,” now the Indian
Government’s official designation, into use, defining the group as including “such castes,
races or tribes or parts of or groups within castes, races or tribes, being castes, races, tribes,
parts of groups which appear to His Majesty in Council to correspond to the classes of
persons formerly known as “the Depressed Classes,” as His Majesty in Council may specify.”
This vague classification was later clarified in “The Government of India (Scheduled Castes)
Order, 1936 which contained a list, or “schedule,” of scheduled castes throughout the British
provinces.[ CITATION Mar61 \l 1033 ]

All-India Depressed Classes Conference at Nagpur, 1942

Efforts by both Indians and British officials encouraged untouchables and the lower castes to
form their own organizations to call for more equitable treatment and to demand economic
assistance. Ambedkar was at the center of these activities. Seeking a vehicle to bring pressure
to bear on the government to secure more resources for the Depressed Classes he had formed
the Independent Labor Party in 1936. Changing tactics, he used a July 1942 All India

10
In fact, the term varna literally means “color.”
Depressed Classes Conference in Nagpur to establish an All India Depressed Classes
Federation.11

11
Beteille 48
 CHAPTER II

INDEPENDENCE AND THE CONSTITUTION: FRAMING

RESERVATIONS POLICY.

On May 16, 1946, the British government released the Cabinet Mission Statement, a set of
proposals to guide the framing of a new Indian constitution. By this time, the wheels for
India’s independence had already been set in motion by Clement Atlee’s Labour Party
government in London. Among other recommendations, the Cabinet Mission laid out a
detailed plan for the Constituent Assembly’s composition, such that the body be “as broad-
based and accurate a representation of the whole population as possible.” Three categories
from which to draw delegates were proposed. In addition to divisions for Muslims and Sikhs,
the Cabinet Mission suggested a “general” category which would include all others groups
Hindus, Anglo-Indians, Parsis, Indian Christians, the Scheduled Castes and Tribes, and
women, among others. Delegates were appointed on the basis of indirect elections in the
provincial legislative assemblies.[ CITATION SKS00 \l 1033 ]
In March 1947, Britain sent Lord Louis Mountbatten, war hero and royal relative, to New
Delhi as the King-Emperor’s last Viceroy. His mission was to transfer power to an
independent Indian government. In the end, power was transferred to two successor entities,
Pakistan on August 14, 1947, and India on August 15, 1947.12
Under the Cabinet Mission plan the Constituent Assembly was to consist of 389 seats, 296 of
which were filled by delegates elected from the directly-administered provinces of British
India and 93 of which were allotted to the princely states. The total number of seats was
based on an undivided India, and, overall, represented a cross-section of the population of the
country. Given the Muslim League’s boycott of the Assembly, the impact of partition and
subsequent migration, and the lengthy process of integrating the princely states, the number
and distribution of seats continually fluctuated from the time of the first meeting on
December 9, 1946. With the 1947 partition, many Muslim delegates left for Pakistan,
terminating their membership in the Assembly. As a result, the body was reorganized. By
November 26, 1949, it consisted of 324 seats, divided among the provinces and the princely
states and representative of all major minority groups.

12
Churches Back Buddhist Conversion of Dalits,” The Christian Century, 5 December 2001, 13
The make-up of the Constituent Assembly reflected the reality of what groups wield power in
India, then and now. An analysis of membership in the most important advisory committees
of the Constituent Assembly found that 6.5 percent were SCs. Brahmins made up 45.7
percent. Minority and Scheduled Caste delegates did have some influence during the
Assembly proceedings, with several holding significant positions. Dr. H.C. Mookherjee63an
Indian Christian, was Vice-President of the Constituent Assembly as well as Chairman of the
Sub-Committee on Minorities. However, by far the most important was Dr. Ambedkar.
[ CITATION MSr00 \l 1033 ]
This committee was further divided into several subcommittees. The Subcommittee on
Minorities focused on representation in legislatures (joint versus separate electorates and
weightings), reservation of seats for minorities in cabinets, reservation for minorities in the
public services, and administrative machinery to ensure the protection of minority rights.
After extensive research and debate, the Subcommittee on Minorities drafted a report of its
findings for submission to the Advisory Committee. The latter supported most of the
Subcommittee’s recommendations.13

Reservations under the Constitution

On January 26, 1950, India ended its “Dominion” status, became a republic, and put in effect
its new constitution. With an entire section dedicated to “Fundamental Rights,” the Indian
Constitution prohibits any discrimination based on religion, race, caste, sex, and place of
birth (Article 15(1)). This law extends to all public institutions, such as government-run
educational facilities, to access to hotels and restaurants, public employment and public
wells, tanks (manmade ponds for water supply and bathing), and roads. The practice of
untouchability is declared illegal (Article 17).
Significantly, Article 15, which prohibits discrimination, also contains a clause allowing the
union and state governments to make “any special provision for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes.” This language was added in 1951 within weeks of a Supreme Court
decision outlawing quotas in school admissions. The speed of the amendment is indicative of
the strong political support for reservations, Nehru’s personal views notwithstanding.

13
Dr. B R Ambedkar,” <http://www.mmu.ac.uk/h-ss/heh/ambedkar/ambbiog.htm>, Manchester Metropolitan
University. Accessed December 28, 2001.
Similarly, Article 16, calling for “equality of opportunity in matters of public employment,”
contains clauses permitting 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” and another allowing “reservation in matters of promotion” for
Scheduled Castes and Scheduled Tribes. A separate section of the Constitution, “Special
Provisions Relating to Certain Classes,” requires the reservation of seats in the “House of the
People,” or Lok Sabha, and the Legislative Assemblies of the states for the Scheduled Castes
and Scheduled Tribes. The numbers of reserved seats are determined by the proportion
Scheduled Caste and Scheduled Tribe members to the general population, based on
population estimates from the most recent decennial census. The President of India and the
Parliament, in consultation with the state governments, determine the list of groups qualifying
as Scheduled Castes, Scheduled Tribes, and “backward classes.” 14
Several safeguards accompany these provisions for reservation. First, the Constitution
originally required the reservation of seats in the Lokh Sabha and state legislatures to end
after ten years. After five amendments, the policy is now set to expire on January 25, 2010.
Secondly, regarding the reservation of jobs, Article 335 of the Constitution mandates that the
“claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of efficiency of administration.” Finally, a
National Commission for Scheduled Castes and Scheduled Tribes was created to investigate,
monitor, advise, and evaluate the progress of the Scheduled Castes and Scheduled Tribes
under the schemes aimed at the socio-economic development of these groups. Another
Commission was also created to investigate the conditions of the socially and educationally
backward classes.[ CITATION JNP08 \l 1033 ]
It is interesting to note that the Constitution’s reservations construct, which explicitly singles
out certain castes for special preferential treatment, contradicts the document’s prohibition on
discrimination based on caste, race, and other such criteria. Furthermore, India’s caste system
itself, with its strict hierarchy dictated by birth, is at odds with the ideals of equality and
social justice.

Other Legal Protections for Scheduled Castes and Scheduled Tribes

To give teeth to the protections for the Scheduled Castes and Tribes mandated by the
Constitution, India’s Parliament has passed two major laws. The Untouchability (Offenses)
14
Dr. B.R. Ambedkar,” <www.Dalitawaj.com> Accessed March 12, 2019
Act of 1955 (renamed the Protection of Civil Rights Act in 1976) was intended to provide
enforcement of Article 17 of the Constitution, outlawing untouchability. It fell short of
expectations. In the words of India’s National Commission for Scheduled Castes and
Scheduled Tribes, “All the measures taken were not found to be effective enough in curbing
the incidents of atrocities on Scheduled Castes and Scheduled Tribes.” In 1989 a new law, the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, came into force.
Similar to an American hate crimes statute, it provides heavier penalties than under ordinary
law for eighteen specified crimes including forcing the eating of obnoxious substances,
bonded labour, and sexual exploitation.15

15
Ibid., 3
 CHAPTER III

LANDMARK CASES ON RESERVATION

State of Maharashtra v. Champakam Doirairajan16

It is a landmark decision of the Supreme Court of India. This judgement led to the First

Amendment of the Constitution of India. It was the first major judgement
regarding reservations in Republic of India. In its ruling the Supreme Court upheld
the Madras High Court judgement, which in turn had struck down the Government Order
(G.O) passed in 1927 in the [Madras Presidency]. The G.O had provided caste based
reservation in government jobs and college seats. The Supreme Court's verdict held that
providing such reservations was in violation of Article 29 (2) of the Indian Constitution.17

In M. R Balaji v. State of Mysore 18, The Supreme Court, by majority, held that speaking
generally and in board sense’ a special provision of reservation should be less than 50%. How
much less than 50% would, however, depend upon the relevant factors and prevailing
circumstances in each case. The issue of laying down the outer limit arose in the context of
the peculiar circumstance. In this case the state of Mysore issued an order that all
communities except those of Brahmins would fall within the definition of Socially and
Educationally Backward Classes of citizens, Scheduled Castes and Scheduled Tribes, and
that 75% of the seats in educational institutions were to be reserved for them. Holding that
determining who are socially backward is undoubtedly very complex, as it involves the
plethora of sociological, social and economic considerations, nevertheless reservation being a
special measure, could exceed in no case beyond the outer limit of less than 50% of the
total.598 While laying down this maximum extent, the court observed “a special provision
contemplated by Article 15(4)…..must be within reasonable limit. The interests of weaker
section of society which are first charge on the states and the centers have to be adjusted with

16
AIR 1951 SC 226
17
Department of Social Welfare, Government of India. Report of the Committee on Untouchability, Economic
and Educationl Development of the Scheduled Castes and Connected Documents (1969), 3.
18
1963 AIR 649
the interests of the community a whole. The adjustment of these competing claims is
undoubtedly a difficult matter, but if under the guise of making a special provision, state
reserves practically all the seats available in all the colleges, that clearly would be subverting
the object of Article 15(4). In this matter again, we are reluctant to say definitely what would
be a proper provision to make. Speaking generally and in a broad sense, a special provision
should be less than 50%.

In, T. Devadasan v. Union of India19, The Supreme Court read the Balaji below 50% rules as
rigid one and applicable equally to reservation under Article 16(4). Devadasan involved a
central scheme reserving post in favor of the scheduled caste and Scheduled Tribes for
promotion from grade IV to grade III post in the central secretariat service. The government
had applied the carry forward rule. Under which the unfilled reserved post were carried over
to the three succeeding years. The result was that for the year in question 64.4 percent of the
available vacancies were reserved in favor of the favored groups. Proceeding from the notion
that Article 15(4) and 16(4) are exception to the equality clauses the court struck down the
carry forward rule as unconstitutional. The court held that reservation could not be used to
destroy or nullify the ideal of equality of opportunity enshrined in Article 16(1). The
overriding effect of causes (4) on clause (1) and (2) could only extend to the making of
reasonable number of reservation of appointments and posts in certain circumstances, and the
reasonable number is that which strike a reasonable balance between the claims of the
backward classes and the claims of other employees as pointed out in Balaji case. The
purpose of Article 16(4) was described by the court as ensuing equal opportunity for all
citizens relating to employment and appointments to any official under the state. Article 16(1)
was thus viewed by the court as ensuing uniform standards and protecting the claims of
meritocracy and thus on every occasion for recruitment the state should see that all citizens
are treated equally. The guarantee is to each individual citizens and therefore, every citizen
who is seeking employment or appointment is entitled to be afforded an opportunity for
seeking such employment or appointment.20
The court suggested the following formula for striking a balance between the competing
claims. Where the objects of a rule is to make reasonable allowance for the backwardness of
the member of class by reserving certain proportion of appointments for them what the state

19
1964 AIR 179
20
Government of Britain: India Office. Report on Indian Constitutional Reforms (Montagu-Chelmsford
Proposals), (1918), 7. 23 Ibid., 230
would in fact be doing would be to providing the members of the backward classes with an
opportunity equal to that of the members of the more advanced classes in the matter of
appointments. Reservation are confined to certain proportion of appointments, leaving a
substantial number of post open for merit competition, then the requirement of equality will
be met. A reservation of more than 50 percent would destroy equality.

In the State of Kerala v. N. M Thomas21, the Supreme Court made a remarkable shift from
earlier precedents and declared that Article 16(4) is not an exception but is an elaboration of
the equality principle contained in Article 16; and thus in appropriate cases the extent of
reservation may be as high as eighty percent. This description heralded a new era in the field
of reservation as it legitimized transcending the rule of 50% laid down in Balaji which it
trivialized as mere rule of caution. The consideration of administrative efficiency has been
emphasized again by the Supreme Court in different cases. The court stated that reservation
cannot be stretched beyond a particular limit,’ and in certain cases where expertise and skills
are of essence,’ merit alone must be the sole and decisive consideration and there would be
no reservation in those cases.22

In R. K Sabarwal v. State of Punjab23, the Supreme Court held that when percentage of
reservation is fixed in respect of a particular cadre and the roster indicates the reserve points,
it has to be taken that the post shown at the reserve points are to be filled from amongst the
member of reserve categories and the candidates belonging to the general category are not
entitled to be considered for the reserved posts. On the other hand the reserve categories
candidates can compete for the non-reserve post their number cannot be added and taken into
consideration for working out of percentage of reservation. For determining as to what extent
reservation would be reasonable we must take into account two factors:- one its effect on the
fundamental rights of the candidates of the general category under Article 15(1) and 16(1)
and 16(2) of the Constitution and the other about its effect on merit and efficiency in
administration. There can be no doubt that reservation adversely affect both and has to be
tolerated to a reasonable extent as something necessary to compensate for injustice
perpetrated by society on the Scheduled Tribes as well as other backward classes in the past.

21
1976 AIR 490
22
United States Office of Strategic Services, The Depressed Classes of India (Washington: Office of
StrategicServices, 1943) 31. (Originally classified)
23
1995 AIR 1371
In Indra Sawhney v. Union of India24, the Supreme Court observed that clause (4) of Article
16 speaks of adequate representation and not proportionate representation. Adequate
representation cannot be read as proportional representation. Principle of proportionate
representation is accepted only in Articles 330 and 332 of the Constitution and that too for a
limited period. It is therefore, not possible to accept the theory of proportionate representation
though the proportion of population of backward classes to the total population would
certainly be relevant.
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 that to say that reservation under clause (4) not exceeds 50% of the
appointments or posts, barring certain extra ordinary situations as explained here in after.
From this point of view, the 27% reservation provided by the government in favour of
backward classes is well within the reasonable limits. Together with reservation in favor of
Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. It need no emphasis to
say that the principal aim of Article 14 and 16 is equality and equality of opportunity and that
clause (4) of Article 16 is but a means of achieving the very same objectives. Clause (4) is a
special provision- though not an exception to clauses (1). Both the provisions have to be
harmonized keeping in mind the fact that both are but the treatment of the principle of
equality enshrined in Article 14. The provision under Article 16(4) - conceived in the interest
of certain section of society – should be balanced against the guarantee of equality enshrined
in clause (1) of Article 16 which is a guarantee held out of every citizen and to the entire
society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being
confined to a minority of seats.25

From the above discussion, the irresistible conclusion that follows is that the reservations
contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule,
it is necessary not to put out of consideration certain extra ordinary situations inherent in the
great diversity of this country and the people. It might happen that in far-flung and remote
areas the population inhabiting those areas might, on account of their being out of the main
stream of national life and in view of condition peculiar to and characteristically to them,
need to be treated in a different way, some relaxation in this strict rule may become

24
AIR 1993 SC 477
25
Nearly 20 years later, Attlee would be Prime Minister when Britain granted India independence.
imperative. In this connection it is well to remember that the reservation under Article 16(4)
do not operate like a communal reservation. It may well happen that some members
belonging to say, Scheduled Castes get selected in the open competition field on the basis of
their own merit; they will not be counted against to quota reserved for Scheduled Castes’ they
will be treated as open competition candidates.26

Though the draftsman of the Constitution visualized judicial review of the extent of
reservation, the text of Article 16(4) itself supplies no opponent warrant for it, unless the
word ‘reservation’ is construed to necessary imply a minority (less fifty percent) of posts –
not merely a minority for any single backward group but for the aggregate of all backward
groups. Some judicial control over the extent of reservations may be necessary to preserve
their character as an exception and prevent government from creating it into a general
principle of operation, but while a strict “percentage” limitation has the obvious advantage of
definiteness, it is complicated but its connection with the question of whom the state may
designate as backward. If the backward groups may be allowed reservations commensurate
with their ratio in the population, would a similar limitation be placed on the total number
who may be designated as backward? or if as has sometimes been the case some 90% of the
population was designated as backward, may not the state commensurate number of posts.
The extent of both reservations and benefits might be reviewed on the different ground – their
conformity with the “equal protection” clauses of Article 14. This would amount to a rule of”
reasonableness” which would free the courts from the arbitrariness of the “percentage” test.
One can visualize “reasonable” reservations in evolving more than fifty percentages and
abused involving less. Judicial control of the percentage of reservation cannot be separated
from the review of standards for designated the backward. The quantum of preference is itself
no indication of its legitimate constitutional use.

26
The committee from Bihar and Orissa called for the creation of separate constituencies for the Depressed
Classes, rejecting the nomination scheme
 CHAPTER IV

RESERVATION POLICY AND EXCUSION OF CREAMY LAYER

The aim of civilized society should be to secure dignity to every individual. There can be no
dignity without equality of status and opportunity. The democratic foundation is missing
when equal opportunity to grow and give one’s best to the society is denied to a sizable
section of society. The goal enumerated in the preamble of the Constitution remains
unattainable so long as the equality of opportunity is not ensured to all. The commitment of
the founding fathers was to uplift our backward class brethren by giving them protective
discrimination and ensuring their social justice. For this reservation has been given by the
Central as well as state government to backward classes in public employment as well as in
educational institutions. Founding fathers wanted to minimize inequalities in status and to
provide facilities and opportunities not only among individuals but also among groups of
people so that they may secure adequate means of livelihood and their education and
economic interests are protected.
The Mandal Commission has pointed out 3743 castes as backward which are considered as
other backward classes for giving the benefit of reservation. But the real agony is whether all
the 3743 backward castes fulfill all the conditions of a backward class? Justice Kuldip Singh
in his minority opinion has said Mandal has not done any survey to find out whether 3743
castes which according to him are backward classes under Article 16(4). He further said that
hardly any investigation was done by the Mandal Commission to find out the backward
classes for the purpose of Article 16(4). A collection of so called backward castes by a
clerical act based on drawing room investigation cannot be backward class under Article
16(4).27
In K. C Vasant Kumar v. State of Karnataka28, Chinnappa, J., observed “one must, however,
enter a caveat to the criticism that the benefits of reservations are often snatched away by the
top creamy layer of backward class or caste. That a few of the seats and post reserved for
backward classes are snatched away by the more fortunate among them is not to say that
reservation is not necessary. This is bound to happen in a competitive society such as ours.
Are not the unreserved seats and post snatched away, in the same way, by the top creamy

27
Office of Strategic Services (OSS) 34.
28
1985 AIR 1495
amongst them as the same principle of merit on which the non-reserved seats are taken away
by the top layers of society. How can it be had if reserved seats and posts are snatched away
by the creamy layer of backward classes, if such snatching away of unreserved post by the
top creamy layer of society itself is not bad?”29
The creamy layer concept was introduced in Indra Sawhney case. The court observed that the
protective discrimination in the shape of job reservations has to be programmed in such a
manner that the most deserving section of the backward class is benefited. Means test ensures
such a result. The process of identifying backward class cannot be perfected to the extent that
every member of the said class is equally backward. There are bound to be disparities in the
class itself. Some of the members of the class may have individually crossed the barriers of
backwardness but while identifying the class they may have come within the collectivity, it is
often seen that comparatively rich person in the backward class though they may not have
acquired any higher level of education are able to move in the society without being
discriminated socially. The members of the backward class are differentiated into superior
and inferior. The discrimination which was practiced on them by the superior class is in turn
practiced by the affluent members of the backward class on the poorer members of the said
class. The benefits of special privileges like job reservation are mostly chewed up by the
richer or more affluent section of the backward class and the poorer and the really backward
section among them keep on getting poorer and more backward. It is only at the lowest level
of the backward class where the standards of deprivation and the extent of backwardness may
be uniformed. The jobs are so very few in comparison to the population of the backward
classes that it is difficult to give them adequate representation in the state services. It is
therefore, necessary that the benefit of the reservation must reach the poorer and the weakest
section of the backward class. Economic ceiling to cut off the backward class for the purpose
of job reservation is necessary to benefit the needy section of the class.[ CITATION Sha00 \l
1033 ]

29
OSS 31
 CHAPTER V

DETERMINATION OF CREAMY LAYER CLASS

In pursuance of the Mandal case, the Union of India in 1993 issued an Office Memorandum
which stated that children of officers belonging to I A S, I F S, I P S and All India First Class
Service and are those whose annual income exceeded Rs. 1 lakh per annum among the OBCs
be identified as falling under “creamy layer” for being excluded from the benefit of
reservation meant for OBCs. State of Kerela could not evolve a suitable mechanism for
identifying creamy layer. It was seeking extension of time periodically. Then the Apex Court
issued suo motu contempt notice to the state and its chief secretary. During the pendency of
the contempt proceedings, a state legislature committee went into issue of creamy layer. It
reported that the some OBCs were not adequately represented in the service of the state. Later
the state enacted the impugned 1995 Act declaring that there was no socially advanced person
among the OBCs in the state. Apex court directed the construction of K. J Joseph Committee
to identify the creamy layer among the OBCs. The Committee identified the creamy layer
and frame some guidelines to exclude them. The annual income of a person belonging to
OBC was raised to Rs. 1.5 lakh for this purpose. The Bench said that till the state appointed a
commission to identify the “creamy layer” all the appointment in the service of the state
government including the PSUs and cooperatives would be on the basic of guidelines of the
Joseph Committee Report.100 Justice Jagannadharao said “whether creamy layer is not
excluded or whether forward castes get included in the list of backward classes, the position
will be the same, namely that will be a breach not only of Article 14 but of the basic structure
of the constitutions”30
In accordance with the direction given by the Supreme Court the Union Government had
appointed an expert committee known as the Justice Ram Nandan Committee to identify the
creamy layer among the socially and educationally backward classes (SEBC). The Expert
Committee submitted its report on March 16, 1993 which was accepted by the Government
of India. The report identified the creamy layer among the SEBC for excluding it from the list
of Mandal Beneficiaries. The Committee report states that only when the creamy layer is

30
Although the Commission denied separate electorates to the Depressed Classes, it “felt compelled to
continue” separate electorates for the Muslims, Sikhs, and the Europeans. (John Simon, India and the Simon
Report: A Talk (New York: Coward-McCann, Inc., 1930).
substantially and stably formed after crossing the limits of social backwardness, then and then
alone can it be made the basic for disentitlement. Those are as follows:
 Certain Constitutional posts qualify for the rule of exclusion e.g., posts of President,
Vice-President, Judges of the Supreme Court and High Court, Chairman and
Members of UPSC and State PSC, Chief Election Commissions, Controller and
Auditor General of India, Governors, Ministers and Members of Legislatures.
 The rule of exclusion covers Class I Officers of Central and State Service (direct
recruitments) Public Forces, Professional Class including trades, business and
industry and property owners.
 It excludes those having gross annual income of Rupees One lakh and above.
 In the service category the rules of exclusion will apply if either the husband or wife
is a Class I officer. Where both are class I officers and one dies the rule of exclusion,
applies. But if both die then the rule does not apply. Permanent incapacitation is
treated as death the rule of exclusion does not apply.
 The committee says that if before the death of either of or both spouses occurs, either
of the spouses has had the benefit of employment in any international bodies like the
United Nations, I M F, World Bank for a period of five years, then the exclusion rule
would continue to apply on their children.
 If a lady belonging to SEBC marries to a class I officers then she would be entitled to
get the benefits of reservation.31

In Ashok Kumar Thakur v. State of Bihar 32, the Supreme Court upholding the decision in
Indra Sawhney case104 where the court held that a person belonging to a backward class,
who becomes member of IAS, IPS or any other All India Service, his children cannot avail
the benefit of reservation. The states of Bihar and Uttar Pradesh have added further condition
such as salary or rupees ten thousand or more per men sum, the wife or husband to be
graduate and one of them owning a house in a urban area. So far as the professional are
concerned, an income of Rs. 10 lakhs per annum has been fixed as the criteria. It is further
provided that the wife or husband is at least graduate and the family owns immovable
property of the value of at least rupees twenty lakhs. Similarly, the criteria regarding trades,
industrialist, agriculturist and other is wholly arbitrary apart from being contrary to the
guidelines laid down by Supreme Court in Mandal case. The court further held that the
31
OSS 34
32
1996 AIR 75
protective discrimination in the shape of job reservations under Article 16(4) has to be
programmed in such a manner that the most deserving section of the backward class in
benefited means test by which “creamy layer” is excluded ensure such result. The process of
identifying backward class cannot be perfected to the extent that every member is bound to
be disparities in the class itself. Some of the members of the class may have individually
crossed the barriers of backwardness but while identifying the class they may have come
within the collectivity. It is often seen that comparatively rich person in the backward class
are able to more in the society without being discriminated socially. The members of the
backward class are differentiated into superior and inferior. The discrimination which was
practiced on them by higher class is in turn practiced by the affluent members of the
backward class on the poorer member of the same class. The benefits of social privileges like
job reservation are mostly chewed by the either or more affluent section of the backward
class and the poorer and the really backward section among them keep on getting poorer and
more backward. It is only at the lowest level of the backward class where the standards of
deprivation and the extent of backwardness may be uniform. The job are so very few in
comparison to the population of the backward classes that it is difficult to give them adequate
reservation in the state service it is therefore necessary that the benefit of reservation must
reach the poorer and the weaker section of the backward class. Economic ceiling to cut off
the backward class for the purpose of job reservation is necessary to benefit the needy section
of the class. The means test is, therefore imperative to skim off the affluent section of the
backward class.33

In Ashok Kumar Thakur v State of Bihar34, the Supreme Court, finally after examining the
criteria for identifying the creamy layer as laid down in Mandal case, came to the conclusion.
and approved the rule of exclusion framed by the government of India.

In Ashok Kumar Thakur v. Union of India 35, the Court held that when socially and
educationally backward classes are determined by giving importance to caste, it shall not be
forgotten that a segment of that caste is economically advanced and they do not require the
protection of reservation. Determination of backward class cannot be exclusively based on
caste. Poverty, social backwardness, economic backwardness, all are criteria for determine

33
Brock 97
34
Supra note 31
35
Supra note 31
action of backwardness. It has been noticed in Indra Sawhney case that among the backward
class, a section of the backward class is a member of the affluent section of society. They do
not deserve any sort of reservation for further progress in life. They are socially and
educationally advanced enough to compete for the general seats along with other candidates.[
CITATION Ven98 \l 1033 ]
The Court further held that it ought to be understood that creamy layer principle is introduced
merely to exclude a section of particular caste on the ground that they are economically
advanced or educationally forward. They are excluded because unless this segment of caste is
excluded for that caste group, there cannot be proper identification of the backward class. If
the creamy layer principle is not applied it could easily be said that all the castes that have
been included among the socially and educationally backward classes have been included
exclusively on the basis of caste. Identification of SEBC for the purpose of either Articles 15
(4), 15 (5), or 16 (4) solely on the basis of caste is expressly prohibited by various decision of
this court and it is also against Article 15 (1) and Article 16 (1) of the Constitution to fulfill
the condition and to find out truly what is socially and educationally backward class, the
exclusion of creamy layer is essential. It may be noted that the creamy layer principle is
applied not as a general principle of reservation. It is applied for the purpose of identifying
the socially and educationally backward class. One of the main criteria for determining SEBC
is poverty. If that be so, the principle of exclusion of creamy layer is necessary.36
The court further held that same principle of determining the creamy layer for providing 27%
reservation for backward classes for appointment need not be strictly followed in case of
reservation envisaged under Article 15(5) of the constitution. The government can make a
relaxation to some extent so that sufficient number of candidate may be available for the
purpose of filling up the 27% reservation. It is for the union government to issue appropriate
guidelines to identify the creamy layer, so that SEBC are properly determined in endurance
with the guidelines given by this court. In this case it was categorically held that the creamy
layer principle cannot be applied to STs and SCs as SCs and STs are separate classes by
them. Ray, C. J., stated that scheduled caste and Scheduled Tribes are not a caste within the
ordinary meaning of caste.
The process of chronic development and the spread of education have resulted in narrowing
the gap between the classes considerably. As larger percentages of backward class member
attain acceptable standards of education and employment, they should be narrowed from the

36
OSS 35.
backward classification, so that attention is given to those classes that genuinely need help. It
would be a useful exercise to review the classification of backward classes once again and
also check whether the criteria used for classification of backwardness is relevant for today’s
conditions. If this is not done, it will provide the backward classes incentive to remain
backward, because in the knowledge that, with relatively little effort and qualification the
government still guarantee them adequate educational and employment opportunities. A
periodical reexamination of the classification of backwardness and a progressive reduction of
reservation percentage, couple with expansion of educational facilities is the policy that will
suit the country best in the long term. Governments may be reluctant to reduce reservation or
attempt a reclassification because of their tremendous political implications, but it would be
consistent with the principle behind helping the genuinely needy only. Therefore, the creamy
layer should be excluded not only among the other backward classes but also from the
scheduled caste and Scheduled Tribes.37

37
Politically active Dalits consider the term “Harijan” patronizing and condescending. Its use was prohibited in
all government business in 1990. (Nabhi’s Brochure on Reservation and Concession (New Delhi: Nabhi
Publications, 2001) 335.)
 CHAPTER VI

ONE HUNDRED THIRD CONSTITUTIONAL AMENDMENT ACT

The Constitution (One Hundred and Third Amendment) Act, 2019, came into force with
effect from January 14, 2019 on being passed by both the houses of Parliament and receiving
the assent of the President of India. It provides for Economic Reservation in education and
jobs by inserting clause (6) in Article 15 and 16 of the Constitution. Article 15(6) enables
State to make special provisions for advancement of any ‘economically weaker section’ of
citizens, including reservations in educational institutions. It states that such reservation can
be made in any educational institution, including private institutions, whether aided or
unaided, except minority educational institutions covered under Article 30(1). It further states
that the upper limit of reservation will be ten percent, which will be in addition to the existing
reservations. As regards the reservations in jobs, Article 16(6) enables State to make
provision for reservation in appointments, in addition to the existing reservations, subject to a
maximum of ten percent. The Constitution (103rd Amendment) Act, 2019 has empowered
the state to provide up to 10 per cent reservation in education and public employment for
“economically weaker sections” (EWS) of citizens other than the Scheduled Castes (SC), the
Scheduled Tribes (ST), and the non-creamy layer of the Other Backward Classes (OBC-
NCL). This will be over and above the existing scheme of reservations and increases the total
reservations to 59.50 per cent. The fraught legal history of reservations in India shows that
from 1951 onwards whenever the Supreme Court gave an adverse ruling on some aspect of
reservations in education or public
employment, the Parliament responded by amending the Constitution to reverse or overcome
the inconvenient judicial pronouncements. The 103rd Amendment is the latest step in this
direction aimed at overcoming the Supreme Court’s rulings that (1) economic backwardness
cannot be sole criterion for reservation and (2) the total reservations should not be greater
than 50 per cent. Even a Constitutional amendment can be struck down by the Supreme Court
if it has the effect of destroying or abrogating the ‘basic structure’ of the Constitution. So, the
only possible legal challenge to the validity of the 103rd Amendment is a ‘basic structure
challenge’
The reservation for the new category will be over and above the existing scheme of 15 per
cent, 7.50 per cent and 27 per cent reservations respectively for the SC, ST and OBC-NCL
thus bringing the total reservations to 59.50 per cent. An ‘Explanation’ states that EWS shall
be such as may be notified by the State from time to time based on family income and other
indicators of economic disadvantage. In its Office Memorandum no. 20013/01/2018-BC-II
dated January 17, 2019, the Ministry of Social Justice and Empowerment, Government of
India has stipulated that only persons whose families have a gross annual income less than
Rs.8 lakhs, or agricultural land less than 5 acres, or residential flat less than 1,000 sq. ft., or
residential plots less than 100 sq. yards in notified Municipalities, or residential plots less
than 200 sq. yards in areas other than notified Municipalities, are to be identified as EWS for
the benefit of reservation.38
It is true that the Supreme Court has repeatedly held that economic backwardness cannot be
the sole criterion for reservation, and that reservation only provides a right of access for the
under-represented classes and is not an anti-poverty programme. But those Supreme Court
decisions involved testing a legislation or an executive order against the Constitutional
provisions as they existed then. They stand negated now that we have a Constitution
amendment validating economic backwardness as the sole criterion for a new category of
reservation.[ CITATION Gau01 \l 1033 ]
It is also true that the Supreme Court has consistently ruled that for reservation to be
reasonable and not defeat or nullify the main right to equality, the total reservations should
not be greater than 50 per cent. The Court has emphasised that this is not a mere rule of
prudence but a binding rule. But this ‘50 per cent ceiling’ stands effectively breached by the
latest Constitution amendment. The fraught legal history of reservations in India shows that
from 1951 onwards whenever the Supreme Court gave an adverse ruling on some aspect of
reservations in education or public employment, the Parliament responded by amending the
Constitution to reverse or overcome the inconvenient judicial pronouncements. The
Constitution (103rd Amendment) Act, 2019, is the latest step in this direction to overcome
the Supreme Court’s bar on economic criteria for backwardness and the 50 per ceiling on
total reservations.

The only possible legal challenge to the validity of the 103rd Amendment is a ‘basic structure
challenge’. In the landmark case of Kesavananda Bharati vs State of Kerala (1973), the

38
Jagadis Chandra Mandal, Poona Pact and Depressed Classes (Calcutta: Sujan Publications, 1999)
Supreme Court ruled that the Parliament’s power to amend the Constitution under Article 368
is not absolute and even a Constitutional amendment can be struck down if it has the effect of
destroying or abrogating the ‘basic structure’ of the Constitution. The phrase is not to be
found in the Constitution and is a judicial invention. The “doctrine of basic structure”, also
known as the “doctrine of constitutional identity”, holds that there are certain systematic and
structural principles such as the democratic form of government, republican form of
government, federalism, equality, freedom, secularism, independence of the judiciary, power
of judicial review and so on that form the core or the essence of the Constitution and give it a
particular ‘identity’. They are beyond the words of any particular Article, and underpin and
connect several related Articles of the Constitution. They are part of the Constitutional law
even if they are not expressly stated in the form of rules. They are beyond the amending
power of the Parliament because amending them would amount to destroying the very
identity of the Constitution.39

In Indira Nehru Gandhi v. Raj Narain (1975), the Supreme Court ruled that the claim of any
particular feature of the Constitution to be a ‘basic feature’ would be determined by the Court
in each case that comes before it. So far, a multitude of features have been declared ‘basic’ by
different Judges, individually, in different cases. However, this lack of unanimity has not
stood in the way of the Supreme Court applying the basic structure doctrine in several cases.
It is pertinent to note that, out of the 72 Constitution Amendment Acts enacted since 1973
excluding the latest one, the Supreme Court has invoked the “basic structure” doctrine to
strike down only seven of them—mostly in cases where the power of judicial review or the
independence of the judiciary was threatened by a Constitutional amendment. While in six of
these cases, only some parts of the Amendment Acts were struck down, the first time an
entire Amendment Act was stuck down was the recent Constitution (99th Amendment) Act,
2015 relating to the replacement of the Collegium system by the National Judicial
Appointments Commission. The Court has otherwise been loath to invalidate Constitutional
amendments, especially those relating to reservations. For the legal challenge against the
103rd Amendment to succeed, one must therefore show that it has mangled the right to
equality, which is part of the basic structure of the Constitution, beyond recognition.

39
Text of Pact at www.harijansevaksangh.org/poona, accessed March 12, 2019.
 CHAPTER VII

AN ASSESSMENT OF RESERVATIONS/ CONCLUSION

As the reservations policy expands, involving more groups of people and continuing to
generate debate, so too does the task of assessing this system. A review of the literature
reveals entire books dedicated to the issue, and even these efforts cannot fully sort out the
reservations puzzle. In order to achieve breadth without losing depth, I have chosen to
examine the effectiveness of reservations by focusing on the experience of the scheduled
castes (SCs). Furthermore, I will analyze the policy across time, from inception to present, on
a national level. Narrowing the problem in this way facilitated a more comprehensive study
of the domains into which reservations extends the legislatures, government service, and
education. In addition, because consistent and complete state-specific data were unavailable,
this assessment of reservations relies primarily on all-India statistics.40
Though the scheduled tribes (STs) and the other backward classes are undoubtedly important
players, covering them thoroughly would be beyond the scope of this study. The other
backward classes (OBC), particularly since the release of the Mandal Report, have often been
at the center of the controversy surrounding reservations. Nevertheless, Oliver Mendelsohn,
for example, has attributed the relative lack of controversy over reservations for SCs and STs
(compared to that over reservations for backward classes), who are guaranteed seats in
legislatures in addition to preferential treatment in education and public employment, to the
reservation system’s “failure.” It is for this reason, Mendelsohn argues, that the policy has not
generated the animus of a more successful program.
In its 50-plus years of operation has the reservations policy achieved positive results?
Have the SCs received the social, political and economic uplifting envisioned by the
Constitution’s framers? This section will address these questions.

Dalits and the Law

40
Sharma Appendix 1.
When SC legislators do not represent their interests, Dalits do not have many other options
for protesting transgressions of the reservations policy or atrocities they sustain. The police,
for example, are often indifferent to the SC’s grievances and have frequently been known to
be aggressors themselves.[ CITATION Mic99 \l 1033 ]
In October 2000 in Mataila village, Uttar Pradesh, upper caste men severely beat up and
threw acid on six Dalits, blinding two. One of the victims gave an account of the incident:
They beat us mercilessly and poured acid on all of us. Our family took us to the Mati police
post in the neighborhood but we were snubbed by the policemen there...(when they went to
the police station in Dewa the next day), the police reluctantly lodged our complaint after we
requested them several times…we were left to go to the hospital on our own.” 41
Though the conduct of the police in this case showed more negligence than brutality, many
cases of violence committed by the police against SCs have been documented. Of the 418
cases brought to the attention of the National Commission for Scheduled Castes and
Scheduled Tribes in 1993-94, 52 involved the commission of atrocities by the police. Such
cases included torture while in police custody, rape in police custody, and other harassment.
In 1994 for instance, police in the Vaishali district of Bihar beat an SC youth to death.
Another 23 cases involved lapses such as the failure of the police to arrest the accused and to
provide protection to victims of caste-based atrocities. For example, in Fatehpur district,
Uttar Pradesh, non-SCs murdered an SC father and son over a land dispute and set fire to the
victims’ house after placing the bodies inside. The local police wrote off the incident as a
“fire accident” and did not press charges on the culprits.
SCs also do not often have means for or access to legal resources to contest violations. Few
have obtained judgeships and other positions in courts. Table 13, which surveys SC
representation on the High Courts of select states in 1996, shows that SCs rarely attain posts
in the upper echelons of the Indian justice system:
Administrative problems aside, a clearly disgruntled Sharma got to the heart of the matter in
the opening pages of his report:
Today the question of reservation has plunged the whole country into an atmosphere of
madness…Unfortunately instead of appreciating the spirit of reservation in a right way as
envisaged in the Constitution and consistent with its leasie spirit and creating a suitable
atmosphere therefore it is being used the arithmetic of votes as an unerring weapon for

41
Dr. Ambedkar & Caste,” Harijan, February 11, 1933, 3.
strengthening the party base in the context of all prevailing real politics prevalent all over the
country. The reservation is not only turning into a partnership in the gains of exploitation but
also an instrument of permanent division, prejudices, inequality and distress created thereby
in the society. Thus to-day the foremost question is how far and how much the interests of the
country and society will continue to be sacrificed for the immediate political gains.
Thus, part of the explanation for the reservations policy’s problems stems from the system
having become a political tool for political parties looking to expand their vote banks.
Though they may jump to support reservations and even seek the policy’s extension, such
parties lack the political will to follow through with their promises once they have achieved
election.

Reservation as an Electoral Tool: Political Interests

A survey of the manifestos of the major political parties in the late 1990s indicates that nearly
all groups address the issue of reservations. Furthermore, adopting a pro- reservations stance
is often the course of action, since, as the policy expands, opposing the reservations is
considered “electoral suicide.” In 1996, for example, four major parties Congress I, BJP,
Janata Dal, and CPI(M) endorsed reservations. While the BJP, Janata Dal, and CPI(M)
supported reservations for backward classes, the Congress party even proposed to extend
reservation to women in the Lok Sabha.42
This is not a new development on the Indian political scene. As Christophe Jaffrelot argues in
his forthcoming book India’s Silent Revolution: The Rise of the Low Castes in North Indian
Politics, the Congress party had long been aware of the significance of the SC vote as well as
of the electoral potential of the reservations system:
Congress succeeded in projecting itself as the natural representative of the Scheduled Castes
because of its skill in promoting or co-opting Untouchable leaders including cadres of the
parties established by Ambedkar—and getting them elected in the framework of the
reservation system.
Even if they had propogated revolutionary views in their early career, they often forgot them,
once integrated to the political elite.

The Changing Face of the BJP

42
The Harijan Sevak Sangh’s activities are outlined on its website: www.hindusevaksangh.org
Since the waning of Congress’ dominance, the BJP has emerged as India’s leading party. In
addition to being characterized as a Hindu nationalist party fiercely opposed to Muslim
culture, the BJP has also been described as perpetuating a “Brahminical Social Order” in
which upper caste Hindus dominate and oppress the lower castes in Indian society Since its
political troubles after the 1996 elections, when the party could not find any coalition partners
and was unsuccessful in forming a government, the BJP has attempted to alter its image to
widen its appeal.
One major change has been the BJP’s effort to tone down its traditionally militant Hindu
nationalist rhetoric. Its manifesto features sections on “Commitment to the Welfare of the
Scheduled Castes and Scheduled Tribes” and “Untouchability: A Crime Against Humanity.”
Among its promises are those for a law to back up the reservations policy, special tribunals to
deal with complaints of non-implementation of the policy, and efforts to see that preferential
opportunities benefit the largest and widest cross-section of SCs. The BJP has even invoked
the name of Ambedkar, announcing in its 1998 manifesto that “a befitting National Memorial
in honour of Dr. Babasaheb Ambedkar, who dedicated his life to the cause of social justice,
will be erected at Chaityabhoomi in Mumbai on the lines of national memorials like Raj
Ghat, Shanti Van and Vijay Ghat.”The most recent manifesto from 1999 for the BJP-led
National Democratic Alliance contains pledges to protect existing reservations policy for
SCs.
statements are no doubt aimed at wooing SC voters. 43
Moderating its position has also facilitated the BJP’s attempt to forge more widespread
alliances with regional parties. In 1997, the BJP formed a coalition with the BSP in the Uttar
Pradesh government. Most recently, with its success in the 1999 elections, it heads the
National Democratic Alliance. The Alliance, which includes leftist parties like SC-politician
Ram Vilas Paswan’s Lok Jan Shakti Party, controls the Lok Sabha.
Within its party ranks, the BJP has also tried to advance members with non-traditional
backgrounds, such as SCs. For example, it made Bangaru Laxman, an SC, its president.
However, he was forced to resign when the Tehelka scandal involving bribery and defense
contracts surfaced in 2001.

43
Harijan, February 11, 1933, 3.
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1. V.N. Shukla, Constitution of India 131 (M.P. Singh ed., 2008)

2. M.P Jain (ed), The Constitution of India 176 (EBC, 2018)
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