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BASIC CONCEPT OF RESERVATION IN INDIA WITH SPECIAL REFERENCE TO 50% LIMIT WITH ANALYSIS OF JUDGEMENT

Author: Varsha Kumari Mishra, III year of B.A.,LL.B from Law College Dehradun, Uttaranchal University.


In India, we have a very different society than compared to the most countries in the world. There are all kinds of people, from poor to rich; from highly educated ones to the most illiterate ones and so on. The basic and simple concept of equality will not work in India, or any society for that matter which has significant amount of inequality present. Every policy will work differently for every sector. In India, we have special privileges for the unprivileged sections of the society who need some helping hands. Most of it is accomplished by the system of Reservation. We have a quota-based reservation here. This article will be specifically dealing with caste-based reservations.


Meaning

The straightforward meaning of the concept of reservation is to save seats or opportunities. The reservation can be in favour of an individual or in favour of any particular sect or group. Reservation, in reference to a social phenomenon, can be understood as a means or a machinery to uplift the downtrodden sections of the society and give them an equal stand in the society. This system can be found in almost all the countries of the world with a welfare society. The principle exists in one or the other form, in different parts of the world, depending upon the circumstances and history of that particular country. These systems originated when the countries started adopting the 'Welfare State system' which promotes the social and economic well-being of the individuals and groups of that particular country. It is a well-known fact that a country cannot develop unless all of its people are uplifted.


The other name for this concept, is 'Affirmative Action'. Affirmative Action can be defined as a set of policies and practices within a government or organization, seeking to increase representation of a particular group in areas where they are unrepresented. The principle of Affirmative Action is majorly followed by the United States of America.


In India, reservation is said to be inclusive of the principle of 'Positive Discrimination' or 'Compensatory Discrimination' or 'Reverse Discrimination'. All these terms are based on the same concept. By discriminating against the relatively privileged section of the society, the government is making special provisions for the underprivileged sections in order to compensate them for what they had to go through for years, in the past. In fact, almost everywhere, where there prevails this concept, the main objective of this policy is to give opportunities to such sects who had troubled past.


In the country of India, the main beneficiaries of the policy of reservation has been decided on the basis of caste system because Caste System is a deeply rooted system in India, majorly in the religion of Hinduism, and has been still going on for years and years. It is something which cannot be totally uprooted.


The lower caste people had been deprived of most of the rights, including even the basic of the rights. It is not unknown that the caste system has a stained past and because of that, it had become so important to uplift them and make them aware of their rights. They had to be given a helping hand in order to take them out of their past and for the same purpose, the constitution of India, provided for 'Special Provisions' in their favour. The purpose is to provide all the citizens, from every section of the society, their rights and encourage them to contribute to the growth of the country.


Types of Reservation in India

On the basis of Caste

-Schedule Caste

-Schedule Tribe

-OBC

  • Women and Children

  • Differently Abled Persons


  • Anglo Indians (by virtue of the 'Abolition of Reservation for Anglo Indian Community, 104th Constitutional Act, 2019, the reservation of the Anglo Indian community has been removed from the Parliament and the Legislative Assemblies.)

  • Economically Weaker Sections (introduced through the 103rd Constitutional Amendment, 2019).


Areas where Reservation is given

  • Education Institution

  • legislative assembly

  • employment and promotion


Constitution of India

The Constitution of India provides for the concept of Affirmative Action. No such phrase as 'Positive Discrimination', 'Affirmative Action', etc. has been specified in the Constitution; but terms like 'special provision' and 'reservation' have been used. Following are the Articles of the Indian Constitution that provide for reservation:


Article 15

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Clause (3)

Nothing in this article shall prevent the state from making any special provision for women and children.”


clause (4)

Nothing in this article or in clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and the Schedule Tribes.”


clause (5)

nothing in this Article or in Sub clause (g) of clause(1), Article 19 shall prevent the state from making any special provision by law for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes or Schedule Tribes in so far as such special provisions relate to their admission to educational institutions, including private educational institutions whether aided or unaided by the state other than the minority educational institutions referred to in clause (1) of Article 30.”


clause (6)

Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent State from making:


(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and


(b) any special provision for the advancement of any economically weaker sections of citizens other than the clauses mentioned in clauses (4) and (5) insofar as such special provisions relate to their admissions to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category.


Article 16

Equality of opportunity in matters of public employment.


Clause (3)

Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.


Clause (4)

Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State


Clause(4A)

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


Clause (6)

Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.


PART XVI of the Constitution of India


DPSP

Landmark cases that have decided upon the 50% limit in Reservation.


The facility of Reservation is given to selected communities of the society. But in order to create a balance in the society, a boundary had to be set with regard to the percentage of reservation that was to be given. No such limitation has been provided in our constitution, therefore, reliance had to be put upon different judgements of the Courts of India.


One of the earlier cases that dealt with the issue was of 'Balaji v. State of Mysore’. The background of this case was that in Karnataka, reservations were in force and were continuing since a few decades prior to the constitution. In 1958, the State of Mysore, issued an order under Article 15(4) of the Constitution that all except the Brahmins would be considered as socially and economically backward and reserved 75% of the seats in favour of SEBC, Schedule Castes and Schedule Tribes.


The validity of the order was questioned. The Court, in this case, struck down the order of the Madras Government and held that reservation under Article 15(4) should be reasonable and that it should be in compliance with the rule of equality of Article 15(1). it stated that “Special provision contemplated by Article 15(4) like reservation for posts and appointments contemplated by Article 16(4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the State and the centre have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be adverting 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 way a special provision should be less than 50%; how much less than 50% would depend upon the relevant prevailing circumstances in each case.”


Therefore, it can be said that the Balaji Case was the first case in which the 50% rule was put forward, though it was restricted to Article 15 in this particular circumstance; the rule was held generally.


Devdasan v. Union of India

This case was regarding Article 16 of the Constitution. The 'Carry Forward Rule' was decided upon by the judges. The rule was that “if sufficient number of candidates considered suitable by recruiting authority were not available from the reserved communities in a particular year, then the unfilled vacancies have to be treated as unreserved and has to be filled by the best candidates. The number of reserved vacancies were to be treated as unreserved and added as an additional quota to the number that would be reserved in the following year and this process was to be continued year after year.


In one such occasion, the extent of reservation became 65% by the third year. The judgment of the court was that the rule was unconstitutional as the reservation exceeded the 50% limit. It can be seen that the court, in this case, followed the rulings of the Balaji Case.


The next landmark case that vehemently put the 50% limit in reservation was the case of 'Indira Sawhney v. Union of India. In this case, the court dealt with numerous questions revolving around the whole concept of reservation. The part 5th of the questions specifically dealt with the confusions regarding the 50% rule set in the Balaji case. Question no. 6 in part 5th is as follows:


Question 6: To what extent can the reservation be made?

(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?


(b) Whether the 50% rule, if any, is confined to reservations made under Clause (4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16?

Further while applying 50% rule, if any, whether a year should be taken as a unit or whether the total strength of the cadre should be looked to?


The bench referred to the Balaji Case where it was held that generally the reservation should be less than 50%. But, alongside that, the bench also discussed the opinions of Justice Fazal Ali in Thomas Case where he gave reasons on the irrationality of the 50% limit in reservations. He referred to the 50% rule as a rule of caution which did not exhaust all categories. According to him if a State had a large number of backward class of citizens which constituted 80% of the population and the Government, in order to give them proper representation, reserved 80% of the jobs for them, then it cannot be said that the percentage of reservation is bad and violates the permissible limits of Clause (4) of Article 16.


The court, in this case, considered the opinion of Fajal Ali as a concept of 'Proportionate Representation' and was of the opinion that clause 4 of Article 16 spoke of 'Adequate Representation' and not of Proportionate Representation. It further stated that Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution.


The Bench upheld the 50% rule of the Balaji Case but also added to that that “While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary 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 conditions peculiar to and characteristically to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”


It further reiterated on the 'carry forward' principle that a carry forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule might say that the unfilled reserved vacancies should not be filled by unreserved category candidates but should be carried forward as such for a period of three years. In such a case, a contention may be raised that those reserved posts remain a separate category altogether. It was however decided by the court that the result of application of carry forward rule, in whatever manner it is operated, should not result in breach of 50% rule.


Chebrolu Leela Prasad Rao and ors. v. State of Andhra Pradesh and ors

In this case, the 5-judge bench observed that the affluent and the advanced within the Schedule Castes and the Schedule Tribes are not emitting reservation benefits to trickle down to the needy. The 5 judge bench of the Supreme Court made these observations while holding 100% Schedule Tribe reservation provided by the erstwhile stets of Andhra Pradesh in scheduled areas as unconstitutional and contrary to the 50% ceiling set by the Indira Sawhney judgement.


The State of Tamil Nadu and ors. v. K. Shobhana etc

The court reiterated that the reservation category candidates who score more than the cut off marks for the general category candidates have to be adjusted against the general category based on their merit and not reserved category.


Saurav Yadav v. State of U.P.

It was decided by the court that candidates belonging to reserved category are eligible to fill general/ open category vacancies also based on merit.


Dr. Jaishri Laxmanrao Patil v. The Chief Minister and ors

This case is also commonly known as the 'Maratha Quota Case.' The background of this case is that On November 30, 2018, the State of Maharashtra had enacted the Socially and Educationally Backward Classes (SEBC) Act, 2018, in order to grant reservation to the Maratha community in respect of jobs and education. The reservation crossed the limit of 50% and therefore Citing violation of the Indira Sawhney judgement, multiple petitions were filed before the Bombay High Court, challenging the constitutionality of the Act.


A Division Bench of the Bombay High Court comprising of Justices Ranjit More and Bharati Dangre upheld the constitutional validity of the Act and directed the State of Maharashtra to reduce the 16% reservation to 12-13%, as per the recommendations of the State Backward Classes Commission. It further noted that as per the Indira Sawhney case, special circumstances would warrant the State Government to exceed the bar of 50%.

The decision was then challenged in the Supreme Court.

The 3-judge bench observed that the Maratha Community which comprises of 30% of the population in the state of Maharashtra cannot be compared to the marginalised sections of the society living in far flung and remote areas. It further stated that the state failed to make out a special case for providing reservation in excess of 50%. The case was further transferred to a 5-judge constitutional bench.


The 5-judge bench struck down the Maratha Quota in excess of 50% ceiling limit as unconstitutional. No exceptional circumstances justified the grant of reservation to Marathas in excess of 50% ceiling. It further said “the factors termed as extraordinary and exceptional justifying reservations in excess of 50% are those required for the purpose of providing reservations. The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of the representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50%.”


The Court struck down the Maharashtra SEBC Act, 2018 to the extent it held Marathas as a socially and economically backward class as violating the principles of equality as enshrined in Article 14 and Article 16. It further stated that the Marathas are not socially or educationally backward. It noted that in posts like IAS, IPS AND IFS, 15%, 27% and 17% of seats were filled by the Maratha community, which is a very significant representation. Although, the bench stated that representation in such posts cannot be a sole criterion to put a community under the unreserved category, but it is one of the parameters which can suggest the condition of a community. The court lastly upheld the Indira Sawhney Judgement and held that to change the 50% limit is to have a society which is not found on equality but based on caste-rule.


Lastly, with regard to backwardness of communities, the court stated that all governments have been taking measures for overall developments of all classes and communities and therefore it has to be presumed that all communities and castes have marched towards advancement, unless rebutted otherwise.


Concluding Remarks

The whole concept of upliftment of such communities in India, who had been made to face sufferings since ages, is like a boon to the Indian Society. In India, most of the upliftment are done by giving them special privileges through reservation. This policy has been going on for about 70 years now. As stated by the bench in the Maratha Quota Case, many policies and schemes are launched to provide a helping hand to the backward classes of the society.


Because of such efforts, certain positive results can be seen, as some portions of certain backward classes have been able to attain their rightful position in the society, they are being represented well. But these uplifted sections still utilise the special policies, which are meant for those who really need it and because of this, those who actually need it, remain deprived of such policies which are actually meant for them. As has been held in the case of ABSK Sangh v. Union of India, “clause (4) of Article 16 is not an exception but rather a facet of equality of opportunity and effective method of realising and attempting clause (1) and clause (2).”