Reservation in Educational Institution

 

Jayant Minj

 

ABSTRACT:

Reservation as subject in the Indian society is not a new one. It was running even from the pre-independence times. The Indian constitution proclaims India as sovereign, socialist, secular, democratic republic and promises to all its citizens, justice, liberty, equality and fraternity. The State created by the Constitution is pledged to politico-socio-economic equality of all citizens irrespective of sex, caste and creed, committed to social reform, social change and removal of discrimination between one citizen and another. By the Government of India Act 1909 and 1919, the British Empire allotted some reservation or quota for Muslims and other minority classes in the administration according to the proportion of their population. The constitution of ‘Republic of India’ adopted in the year 1956. This constitution had a provision of reservation for the socially backward communities, primarily the SCs, STs and OBCs. These are the categories of people belonging to certain cast, tribe or region as admitted in the government schedule. These sections were economically, socially and educationally backward. They didn’t have the resources to compete.

By the Ninety-Third Amendment to the Constitution of India came into force on January 20, 2006, and allows the government to make special provisions for the admission “of any socially and educationally backward classes of citizens” to “educational institutions including private educational institutions, whether aided or unaided by the State.” Thus Clause (5) of Article 15 for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or scheduled tribes insofar 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.

 

 

 

INTRODUCTION:

The Indian constitution proclaims India as sovereign, socialist, secular, democratic republic and promises to all its citizens, justice, liberty, equality and fraternity. The State created by the Constitution is pledged to politico-socio-economic equality of all citizens irrespective of sex, caste and creed, committed to social reform, social change and removal of discrimination between one citizen and another. Every citizen irrespective of religion, caste, creed and sex, is therefore, entitled to education and employment according to his capacity.

 Reservation in Indian law is a term used to describe policies whereby a portion of employment opportunities, or educational opportunities are set aside or reserved for an under-represented group. It is related to “affirmative action” which is practiced in many other countries. The main difference between the two is that in Affirmative Action the amount of concessions to be made in order to increase representation in an underrepresented group is at the discretion of individual organizations, whereas the reservation system in India is based on statutory quota that must be met.

 

Reservation as subject in the Indian society is not a new one. It was running even from the pre-independence times. The Britishers for their colonies initially used this concept in the name of welfare purposes but the main aim behind this was to control the power by dividing the individuals for the personal interest i.e. the policy of Divide & Rule. By the Government of India Act 1909 and 1919, the British Empire allotted some reservation or quota for Muslims and other minority classes in the administration according to the proportion of their population.

 

From this historical background, this doesn’t means that reservation or quota system is a vice for the Indian society but the importance of reservation was considered in welfare prospective by the framers of Indian Constitution. This was felt that it is important to make certain provisions which deals in the upliftment of poor and depressed classes. So in the part IV of the Indian Constitution i.e. Directive Principles of State some provisions were made which works as guidelines for good governance. Today reservations in India have traditionally been applied only in case of government aided educational institutes, and for jobs in the government or public sector. Currently there is an ongoing debate to expand the scope of affirmative action in India to the private sector.

 

In the United States, affirmative action is defined as a system of preferential treatment for minorities and women which attempts to compensate them for being denied opportunities of advancement due to past and present discrimination.¹

 

Other countries, like India, have adopted affirmative action to deal with the disadvantaged segments of their populations.² While it may surprise some scholars that countries other than the United States employ affirmative action, India utilized such preferential treatment well before the United States. The United States developed affirmative action to fight discrimination against minority groups and women, while India created affirmative action to remedy its history of discrimination against groups, such as the “untouchables,” who occupy the lowest rung in the Hindu caste system. Various names have been attributed to Indian affirmative action. For the purposes of this note, the term “compensatory discrimination” as used by such legal scholars as Parmanand Singh and Marc Galanter, will refer to India's affirmative action programs.³

 

The comparison between the United States and Indian “affirmative action” systems becomes even more interesting upon observing that blacks in the United States and untouchables in India share similar histories of discrimination. It is especially noteworthy that each country has influenced the development of the other's affirmative action programs. Given that the United States and India are so geographically distant from each other and share minimal cultural interaction, finding any similarities between the two countries seems reason enough for investigation.

 

Special emphasis will be given to U.S. and Indian affirmative action programs as they relate to black and untouchable experiences. In examining black and untouchable experiences, the discussion will attempt to reveal the similarities between the affirmative action programs in the United States and India, the influences one has had on the other, and the potential for future interaction. The primary focus will be on Indian influences and perceptions regarding the American affirmative action system and civil rights history.

 

1.      The rationale of the reservation policy:

Let’s first try to agree upon the term ‘Reservation’. Reservation to most of us means ‘setting something aside for some purpose’. The prime keyword here is ‘Purpose’. Acts not supported by purposes often appear dubious and are tougher to explain.

The constitution of ‘Republic of India’ adopted in the year 1956. This constitution had a provision of reservation for the socially backward communities, primarily the SCs, STs and OBCs. These are the categories of people belonging to certain cast, tribe or region as admitted in the government schedule. These sections were economically, socially and educationally backward. They didn’t have the resources to compete. During the time when we gained our independence, majority of the population was concentrated in rural areas. The so called metros of today too were lacking in terms of basic infrastructure. At that time the tribal people or people residing in remote parts could have been struggling for basic amenities. To provide those people with a level playing field, the policy of reservation was adopted.

 

It should also be stress upon one point which could be of some help in justifying the reservation policy at that time. The governmental and professional jobs being limited to the well to do and highly educated, majority of poor and backward population was forced to follow conventional professions practiced by their family. Though British ruled us for a considerable long time but the job opportunities were not many and the gap was still perceptible in the society.

 

What really hurts is the realism. Post 57 years the scenario hasn’t changed much. Majority of the weaker sections of them are still falling back. A fraction of that section who could utilize the provision in bettering there life is now exploiting it. The very purpose of the reservation policy was to bridge this gap and bring the underprivileged to the same level by providing them some concessions in term of education and job opportunities.

 

The purpose of reservations in India is the same as that of affirmative action anywhere else. Reservations are intended to increase the social diversity in campuses and work places by lowering the entry criteria for certain identifiable groups who are grossly under-represented in proportion to their numbers in general population. However, in contrast with most affirmative action policies practiced elsewhere, in India, a majority of the population is covered under the reservation policy; a supreme court ruling that reservations cannot exceed 50% (that would be violative of equality guaranteed by the constitution) has put a cap on reservations, but there are state laws that exceed this 50% limit and these are under litigation in the supreme court. The underlying theory behind reservations is that the under-representation of the identifiable groups is a legacy of the caste system as was practiced in India for a few thousand years.

 

When India became an independent nation in 1947, the Constitution of India listed some erstwhile groups as Scheduled Castes and Scheduled Tribes. The Constitution laid down that 15% and 7.5% of vacancies to government aided educational institutes and for jobs in the government/ public sector, as reserved quota for the Scheduled Castes and Scheduled Tribes respectively. This was initially applicable for a period of 10 years, but after discussions and suggestions has been extended periodically.

 

With the object to improve the condition of the people, who are historically oppressed, the provision has been made under our Constitution and said that the State shall make the special provisions to uplift the socially and educationally backward classes of citizen. In the draft Constitution of India, there were no any such provisions. But by adding the Article 15 (4) the Constitution empowered the State to make special provision for socially and educationally backward classes of citizen.

 

This is big issue in the present day that to whom the reservation should be given. Thought the Constitution of India provides the provisions for the reservation for the disadvantaged section of the society but it is very difficult for the state of find out that which sections of the citizens are backward or disadvantaged. It can also be one of the issues that whether this reservation leads to equality? The Constitution provides that any special provisions may be made for OBCs, but it does not specify as to who may constitute “backward classes of citizen”. Nor does the Constitution provide anywhere else as to who may be backward. It is left to the “State” to define as to who may be backward.

 

From the date when the Article 15 (4) came into force the State is trying to define the “backward classes of citizen”. Thus these determinations of “backward classes of citizen” have been coming from the mouth of judges. Judges are interpreting the Article 15 (4), and taking out the criteria to determine the OBCs. By the various judgements the concept of reservation is developing.

 

This is also a big issue that how much reservation should be made. What will be the percentage of reservation in post graduate and higher education? These are some issues which are being solved by the judgement. At present the Ninety-Third Amendment to the Constitution of India came into force on January 20, 2006, and allows the government to make special provisions for the admission “of any socially and educationally backward classes of citizens” to “educational institutions including private educational institutions, whether aided or unaided by the State.”

 

2.      Reservation to whom:

·        Disadvantaged Section of Society:

The Constitution of India empowers the state to make the special provisions for the disadvantaged section of society and for the women and children. But it is very difficult task for the State for determine that which section of the society is disadvantaged. The Constitution of India provides the Article 14 which says about the ‘Equality before law’. But there are several reasons because of which many sections of the society are not equal. There is a kind of enquality in our society and that is only because of some historical reasons. The Indian people mostly believe in the caste system and because of which these sections of society unable to improve and unable to access education. They are mostly the Dalits and lower caste people.

 

Apart from these sections of the people there were several other sections of the people, they are known as Scheduled Caste and Scheduled Tribes. Because of the historical reason or undeveloped knowledge about the mordent society, they could not unable to access education.

In past they could not get any advantages from the society and therefore they are uneducated and weak. Thus we can say that they are the disadvantaged section if society for the reservation in education has been made.

 

·        Determination of Backward Classes:

So far as the Schedule Caste and the Scheduled Tribes are Concerned they are defined in the definitional Article 336 under clauses (24) and (25) respectively. No such definition of the backward classes has, however, been given anywhere in the Constitution. Article 340, however, contemplates appointment of a commission to investigate the conditions of ‘socially and educationally backward classes’ and such other matters as may be referred to the commission by the President. 

 

Though the Constitution provides that any special provisions may be made for OBCs, it does not specify as to who may constitute “backward classes of citizen”. Nor does the Constitution provide anywhere else as to who may be backward. It is left to the “State” to define as to who may be backward.

 

The “State” have, therefore, made lists for backward classes/communities which have not been entirely free from incongruities and anomalies. It is because of this, coupled with the pertinent fact that there is no central governing agency nor any definition of Backward classes—that much litigation has ensured. The final arbitrator, the Supreme Court, has evolved certain criteria for gauging “backwardness” and it is to these that we must turn.

 

A major difficulty raise by Article 15(4) is regarding the determination of who are ‘socially and educationally backward classes.’ This is not a simple matter as sociological and economic considerations come into play in evolving proper criteria fore its determination. Article 15(4) lays down no criteria to designate ‘backward classes’; it leaves the matter to the state to specify backward classes, but the courts can go into the question whether the criteria used by the state for the purpose are relevant or not.

 

The question of defining backward classes has been considered by the Supreme Court in a number of cases. On the whole, the Supreme Court’s approach has been that state resources are limited; protection to one group affects the constitutional rights of other citizen to demand equal opportunity, and efficiency and public interest have to be maintained in public services because it is implicit in the very idea of reservation that a less meritorious person is being preferred to a more meritorious person. The Court also seeks to guard against the perpetuation of the caste system in India and the inclusion of advance classes within the term backward classes.

 

A. COMMISSIONS REPORTS CONCERNING THE DEFINITION OF BACKWARD CLASSES:

(a) The First Backward Classes Commission:

To determine the criteria for identifying socially and educationally backward classes, the Indian Central Government appointed the first Backward Classes Commission⁴ under Article 340 of the Constitution on January 29, 1953. Two years later the Commission presented a list of 2,399 groups it considered backward and recommended numerous measures to improve their status. The criteria used to identify backwardness were trade and occupation, security of employment, level of education, general representation in government positions and, most importantly, position in the Hindu caste hierarchy.

 

On March 30, 1955 the first Backward Classes Commission submitted its report to the President. The Commission proposed reservations in government jobs ranging from twenty-five percent to forty percent according to the level of the position. They further recommended a reservation of seventy percent in technical and professional institutions for qualified students of backward classes.

 

At the same time the Commission submitted its recommendations, the chairman of the Commission, Kaka Kalelkar, repudiated the report by claiming that the Commission should have used criteria other than caste to designate a group as backward. The Commission's report was also accused of having methodological flaws and internal contradictions. Accordingly, the report of the first Backward Classes Commission was rejected by the Parliament and its recommendations were never implemented.

(b) Mandal: The Second Backward Classes Commission:

On December 20, 1978, then Prime Minister Morarjibhai Desai announced that he would appoint a second Backward Classes Commission under the chairmanship of B.P. Mandal, Member of Parliament. The Mandal Commission was formed with the purpose of determining the criteria for identifying the socially and educationally backward classes and to report on the desirability of reservations and other measures to advance these backward classes not adequately represented in educational institutions and public employment. On December 31, 1980, two years later, the Mandal Commission submitted its report to the then President of India, Neelam Sanjiva Reddy.

(i) Criteria for Identifying the Backward Classes

The Mandal Commission Report noted that Articles 15(4) and 340(1) made special reference to social and educational backwardness but did not state a requirement of economic backwardness. By giving priority to economic tests the government had previously paid little attention to Constitutional requirements which were silent as to a group's economic status as a criterion for backwardness.

 

The Mandal Commission further noted that the strength of the caste system was not in upholding the supremacy of the Brahmin. Instead, its strength was in conditioning the consciences of lower castes into accepting their status as inferior persons. Social and educational backwardness was a direct consequence of the hierarchal caste system. The Mandal Commission noted that the caste system was enduring: it had survived challenges from Buddhism, Islam, British culture and colonial administration, and even the crusades of Gandhi. Finally, the Commission stated that there could be no equality among those who have been historically denied equal opportunity.

 

The treatment of unequals as equals only perpetuated inequality in India. The Mandal Commission noted that by allowing the weak and strong to compete on equal footing, the federal and state governments were in essence creating a "mock competition" where weaker sections of society were destined to fail from the start. The Mandal Commission was determined to remedy this inequality.

 

In Chapter XI of the report, the Mandal Commission set forth its criteria for identifying the Other Backward Classes. The Mandal Commission considered the criticisms of the first Backward Class Commission and also several judgments of the Indian Supreme Court. The Commission based its conclusions on a survey of 405 districts by the Bureau of Economics and Statistics. The survey used was designed with the assistance of top Indian social scientists and specialists. From this analysis the Commission developed several key indicators of social and educational backwardness. These indicators of backwardness were grouped under the three main headings of social, educational, and economic status.

 

Indicators of social backwardness included whether most members of society considered their caste or class to be backward and whether they came from a region generally considered to be backward. Another consideration was whether the caste or class depended on manual labour for its livelihood. An additional indicator was whether twenty-five percent of the females and ten percent of the males above the state's normal average were married at age seventeen or below. In urban areas this indicator of backwardness was whether ten percent of the females and five percent of the males above the state's average were married at age seventeen or below.

 

Educational criteria for backwardness included the number of children who had never attended school. Furthermore, castes or classes where the student drop-out rate was twenty-five percent above average was also relevant when determining whether a class was backward. Economic indicators of backwardness included castes or classes whose total family assets were twenty-five percent below the state average and the number of households who had taken out loans to pay for basic living expenses. In addition, the Mandal Commission considered castes or classes whose source of drinking water was more than half a kilometer from their homes.

 

(ii) Recommendations of the Mandal Commission Report:

In its report, the Mandal Commission observed that Scheduled Castes and Scheduled Tribes make up approximately twenty-two and a half percent of India's population. Accordingly, twenty-two and a half percent of government jobs had already been reserved on their behalf. Because the Other Backward Classes make up fifty-two percent of India's population, fifty-two percent of government posts should therefore be set aside for their benefit. This, however, conflicted with past Indian Supreme Court and state court judgements that held that the total amount of reservations permissible under Articles 15(4) and 16(4) of the Constitution must be less than fifty percent. Thus, the percentage of reservations needed to be set at a figure which, when combined with the twenty-two and a half percent reservations for the Scheduled Castes and Scheduled Tribes, remained below the constitutional ceiling of fifty percent. Hence, the Mandal Commission recommended twenty-five percent reservations for the Other Backward Classes despite the fact that their population is almost twice that figure. The twenty-seven percent figure applied to all government services as well as placement in technical and professional educational institutions. Added together, the two sets of reservations came to forty-nine and a half percent, just below the fifty percent ceiling.

 

With these and other factors in mind, the Mandal Commission made several additional recommendations. The Commission contended that the percentage of backward classes that obtain public employment through open competition should not be adjusted against the reservation quota of twenty-seven percent. Reservations for the Other Backward Classes would apply to promotions as well as for initial placement. Unfilled quotas would be carried forward for three years. The reservation policy would apply to all private sector organizations that are recipients of government financial assistance, including all universities and colleges. Additionally, the Commission recommended the establishment of a separate Ministry for the Backward Classes. Finally, the Mandal Commission recommended that the entire scheme be evaluated after twenty years.

 

B. JUDICIAL PRONOUNCEMENTS CONCERNING THE DEFINITION OF BACKWARD CLASSES:

1.      The backwardness envisaged by Art. 15(4) are social and educational and not either social or educational. This means that a classes to be identified as backward should be both socially and educationally backward.⁵ In Balaji, the Court equated the “social and educational backwardness” to that of the “Scheduled Castes and Scheduled Tribes”. The Court observed: “It was realised that in the Indian society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Scheduled Tribes and it was thought that some special provision ought to be made even for them.”

2.      Poverty alone cannot be the test of backwardness in India because by and large people are poor and, therefore, large sections of population would fall under the backward category and thus the whole object of reservation would be frustrated. ⁶

3.      Backward should be comparable, though not exactly similar, to the Scheduled Castes and Scheduled Tribes.

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

5.      Poverty, occupations, place of habitation, all contributes to backwardness and such factors cannot be ignored.

6.      Backwardness may be defined without any reference to caste. As the Supreme Court has emphasized, Art. 15(4) “does not speak of castes, but only speaks of classes”, and the ‘caste’ and ‘class’ are not synonymous. Therefore, exclusion of caste to ascertain backwardness does not vitiate classification if it satisfies other tests.

 

After the enactment of the above mentioned first Constitutional Amendment in 1951, M.R Balaji v. State of Mysore⁷ was the first case which came up before the Supreme Court. Here an order of the Mysore Government issued under Art. 15(4) reserved seats for admission to the State medical and engineering colleges for backward classes and ‘more’ Backward classes. This was in addition to the reservation of seats for the Scheduled Castes (15%) and for the Scheduled Tribes (3%). Backward and more backward classes were designated on the basis of ‘castes’ and ‘communities’.

 

The Supreme Court characterized Art. 15 (4) as an exception to 15 (1). The Court stated--‘there is no doubt that Art. 15(4) has to be read as a proviso or an exception to Arts. 15 (4) and 29 (2)”.

The Court declared the order bad on several grounds in this case.

 

The firs defect in the Mysore order was that it was based solely on caste without regard to other relevant factors ad his was not permissible under Art. 15(4). Though caste in relation to Hindus could be a relevant factor to consider in determining the social backwardness of the class of citizens, it must not be made the sole and dominant test in that behalf. Christians, Jains and Muslims do not believe in the caste system and, therefore, the test of caste could not be applied to them. In as much as identification of all backward classes under the impugned order had been made solely on the basis of caste, the order was bad. “Social backwardness is in the ultimate analysis the result of poverty to a very large extent.”

 

Secondly, the test adopted by the State to measure educational backwardness was the basis of the average of student population in the last three high school classes of all high schools in the State in relation to a thousand citizens of that community. This average for the whole State was 6.9 per thousand. The Court state that assuming that the test applied was rational and permissible to judge educational backwardness, it was not validly applied. Only a community well below the State average. The vice of the Mysore order was that it included in the list of backward classes, castes or communities whose average was slightly above, or very near, or just below the State average, e.g., Lingayats with an average or 7.1 pre cent were mentioned in the list of backward communities.

 

Thirdly, the Court declared that Art. 15(4) do not envisage classification between ‘backward’ and ‘more backward classes,’ as was made by the Mysore order. Art. 15(4) authorizes special provisions being made for really backward classes and not for such classes as were less advanced that the most advanced classes in the State. By adopting the technique of classifying communities into backward and more backward classes, 90 per cent of the total State population into the most advanced and the rest, and put the latter into two categories—backward and more backward---and the classification of the two categories was not envisaged by Art. 15(4). “The interests of weaker sections of society which are a first change on the State and the Centre have to be adjusted with the interests of the community s 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 Art. 15(4).” The State has “to approach its task objectively and in a rational manner.”

In this case the Supreme Court could sense the danger in treating ‘caste’ as the sole criterion for determining social and educational backwardness. The importance of the judgment lies in realistically appraising the situation when the Court said that economic backwardness would provide a much more reliable yardstick for determining social backwardness because more often educational backwardness is the outcome of social backwardness. The Court drew distinction between ‘caste’ and class’. An attempt at finding a new basis for ascertaining social and educational backwardness in place of castes is reflected in the decision.

 

An order saying that a family whose income was less than Rs. 1,200 per year, and followed such occupations as agriculture, petty business, inferior services, crafts, etc. would be treated as ‘backward’ was declared to be valid in Chitralekha v. State of Mys⁸. Here two factors—economic condition and profession—were taken into account to define backward.

 

In Balaji, the Supreme Court had mentioned caste as one of the relevant factors for determining social backwardness. The order in the instant case was challenged on the ground that caste had been completely ignored for the purpose. The Supreme Court ruled the though caste is a relevant circumstance in ascertaining backwardness of a class, there is nothing to preclude the authority concerned form determining social backwardness of a group of citizens if it could do so without reference to caste. Identification or classification of backward classes on the basis of occupation-cum-income, without reference to caste is not bad and would not offend Art. 15 (4). In the words of Justice Subba Rao;

“.what we intend to emphasize is that under no circumstances a ‘class’ can be equated to a ‘caste’, though the caste of an individual ore a group of individuals may be considered along with other relevant factors in putting him in particular class, we would also like to make it clear that if in a given situation caste is excluded in ascertaining a class within the meaning of Art. 15(4) of the Constitution, it does no vitiate the classification if it satisfied other tests.”

 

 In course of time, the judicial view has undergone some change in this respect and ‘caste’ as a factor to assess backwardness has been given somewhat more importance than it Balaji. The Supreme Court has taken note of the fact that there are numerous castes in the country which are backward socially and educationally and the state has to protect their interests. A caste is also a ‘class’ of citizens and, therefore, if an entire cast is found to be socially and educationally backward, as a fact, on the basis of relevant data and material, then inclusion of caste as such would not violate Art. 15 (4). When backwardness is defined with reference to castes, the Court wants to be satisfied that not ‘caste’ alone, but other factors have also been considered for the purpose.

On this basis, the Court upheld a Madras order defining backward classes mainly with reference t castes. Looking at the history as to how the list had come to be formulated, the Court felt satisfied that caste was not taken as the sole basis of backwardness; the main criterion for inclusion in the list was social and educational backwardness of the castes based on their occupations. Castes were only a compendious indication of the classes of people found to be socially and educationally backward. In P. Rajendran v. State of Madras⁹ WANCHOO, C.J., speaking for the Constitution Bench pointed out that “if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Art. 15(4). But it must not be forgotten that a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is socially and educationally backward class of citizens within the meaning of Art. 15 (4).”

 

Similarly, in S.V. Balaram v. Tate of Andhra Pradesh¹⁰, a list prepared by the Backward Class Commission appointed by the Andhra Government was held valid even though backward classes were enumerated mainly be their caste names because the Court found that the Commission had prepared the lit after a detailed enquiry and applying several tests like general poverty, occupations, caste and educational backwardness. The Court left satisfied that the Commission had enough material before it to be satisfied that the persons included in the list were really socially and educationally backward. But where list was prepared solely with reference to castes, and no material was place before the Court to show that other factors besides caste and been considered in preparing it, the list was quashed as violative of Art. 15(4).¹¹ The Court observed in State of Andhra Pradesh v. P. Sagar,¹² “In determining whether a particular section forms lass, caste cannot be excluded altogether. Bun i the determination of a class a test solely based upon the caste or community cannot also be accepted.”¹³

 

The judicial approach that caste may be listed as backward classes provided they are found to be backward on the basis of some factors other than mere ‘caste’, may possible be more practical in the context the facts of the Indian life. But there is no doubt that this dilutes, to some extent, the Balaji approach. The danger in this judicial thinking is that it will give lease of life to the caste system in India, and the quest for formulae to define backwardness, delinked form the caste system, will recede into the background. In this way, the goal of evolving a casteless society in India in the foreseeable future will receive a setback.

 

A government order excluded the candidates belonging to socially and educationally backward classes from claiming the benefit of reservation f the aggregate annual family income was Rs. 10,000 or over, the order was challenged by a candidate belonging to the backward class, but who was denied the privilege of preferential admission to medical college because her family income exceeded Rs. 10,000 annually. The Supreme Court emphasized in K.S Jayasree v. State of Kerala,¹⁴ that social backwardness is the result of caste and poverty. Poverty or economic standard is a relevant factor in determining backwardness, but cannot be the sole determining factor. Caste cannot also be the sole or dominant test for the purpose. “Caste and poverty are both relevant for determining the backwardness. But neither caste alone nor poverty alone will be the determining tests”. Both of these factors are relevant to determine backwardness. “Social backwardness which results from poverty is likely to be magnified by caste considerations”. Occupations, place of habitation may also be relevant factor for the purpose. With the improvement in economic position of a family, social backwardness disappears. To allow these persons to take advantage of the privileges meant for backward persons, will result in depriving the real backward persons of their chance to make progress.

 

In a number of cases, it has been held that a lady marrying a Scheduled Caste /Scheduled Tribe/ Other Backward Citizen, or one transplanted by adoption or any other voluntary act, does not ipso facto become entitled to claim reservation under Art. 15(4) or Art. 16(4). In Valsamma Paul v. Cochin University,¹⁵ the Supreme Court has emplaned the rationale behind this ruling as follows:

 

“It is seen that Dalits and Tribes suffered social and economic disabilities recognised by Articles 17 and15 (2). Consequently, they became socially, culturally and educationally backward; the OBC also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected to and sought be bring them in the mainstream of the nation’s life by providing them opportunities and facilities. Therefore, when a member is transplanted into the Dalit, Tribes and OBCs, he/she must of necessity also undergo same handicaps, be subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation.

 

The Court went on to say that person who has had an advantageous start in life having been born in forward caste is transplanted into a backward caste by adoption/marriage/conversion does not become eligible to the benefit or reservation either under Art. 15 (4) or 16 (4). “Acquisition of the status of SC, etc. by voluntary mobility into these policy under Art. 15 (4) or 16(4) of the Constitution.”

 

The Supreme Court has clarified in Jagdish Negi v. State of Uttar Pradesh,¹⁶ that no class of citizens can be perpetually treated as socially and educationally backward. Backwardness cannot continue indefinitely. Every citizen has a right to develop socially and educational. The State is entitled to review the situation from time to time. There is no rule that once a “backward class of citizens, always such a backward class”. Once a class of citizens has been held to be socially and educationally backward class of citizens, it cannot be predicate that in future it may not cease to be so. The State may review the situation from time to time and decide whether a given class of citizen which has been characterized as “socially and educationally backward” has continued to form part of that category or has ceased to fall in that category.

 

The Supreme Court has observed in Indera Sawhney v. Union of India,¹⁷ the policy of reservation has to be operated year-wise and there cannot be any such policy in perpetuity. The State can review form year to year the eligibility of the class of socially and educationally backward class of citizens. Further, it has been held that Art. 15(4) does not mean that the percentage of reservation should be in proportion to the percentage of the population of the backward classes to the total population. It is in the discretion of the State to keep reservations at reasonable level by taking into consideration all legitimate claims and the relevant factors.

 

3.      OBJECT OF RESERVATION IN EDUCATION

OBJECT:

Part IV of the Constitution containing the Directive Principles of State Policy, in  article 46, lays down that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice. Access to education is of utmost importance in insuring advancement of persons belonging to the Scheduled Castes, the Scheduled Tribes, and the socially and educationally backward classes of citizens, who is also referred to as the Other Backward Classes (OBCs).

The Constitution (93rd Amendment) Act, 2005, inserted clause (5) in article 15 of the Constitution, with a view to promote the educational advancement of the socially and educationally backward classes of citizens, the Scheduled Castes and the Scheduled Tribes through special provisions relating to admission of students belonging to these categories in all educational institutions, including private educational institutions, whether aided or unaided by the State. In terms of this provision, Parliament as well as the State Legislatures is empowered to make appropriate laws for the educational advancement of the weaker sections of the people.

 

With a view to give effect to the Constitutional provisions, it is expedient and necessary to make statutory provisions in the proposed Bill for reservation in matters of admissions for the students belonging to the Scheduled Castes (SCs), the Scheduled Tribes (STs) and the socially and educationally backward classes of citizens (OBCs) in the Central Educational Institutions, including Institutions deemed to be Universities established, maintained or aided by the Central Government. The provisions of the proposed Bill, inter alia, will not apply to the minority educational institutions referred to in clause (1) of article 30.

 

4.       WHY RESERVATION?:

After India gained independence, the Constitution of India listed some erstwhile groups as Scheduled castes (SC) and Scheduled Tribes (ST). The framers of the Constitution believed that the SCs and the STs are historically oppressed and denied respect and equal opportunity in the society, due to the caste system, and thus are under-represented in the nation building activities. The Constitution laid down that 15% and 7.5% of vacancies to government aided educational institutes and for jobs in the government/ public sector, as reserved quota for the SC and ST candidates respectively for a period of five years, after which the situation was to be reviewed. This period was routinely extended by the following governments and the parliament.

 

The question as to who may constitute classes which are socially and educationally backward (i.e. Other Backward Classes) is matter of continuing balance. However most agree that protective discrimination means that by which past injustices are sought to be corrected by aid or compensatory measures, so that sufferings imposed on certain individuals should no longer continue, and in the future, earlier deprived lot may be equal to those who have these opportunities.

There is another kind of inequality in our society that of caste. Historically the dalits have been unable to access education and professions, because of sickening and inhuman system of purity and pollution, which remains embedded in religious communities across India. Reservations were meant to assure the former “untouchables”, a place in the educational system, and in the public professions, not only to counter economic deprivation. The Scheduled Tribes were granted reservation on other ground that of being far removed from the mainstream of Indian society. In the process, India took a step beyond egalitarianism, even as it provided fore there two communities. This has been the unique Indian contribution to the equality debate; it progresses from basic tents of formal equality, to egalitarianism, to protective discrimination.

 

Reservations were meant to benefit the duly disprivileged on grounds of caste and class. Denial of education and access to professions had practically ensured that dalits were denied access to income or to dignity. Reservations were meant to amend this double disprivilege. For others who have been historically denied access to structures of opportunity, egalitarianism should ensure a social minimum. In order to counter social and economic disprivilege we need to grant resources. In order to counter caste disprivilege, which bars certain castes from entering education and professions, we need to fortify reservations.

 

In Valsamma Paul v. Cochin University, ¹⁸ the Supreme Court has emplaned the rationale behind this ruling as follows:

 

“It is seen that Dalits and Tribes suffered social and economic disabilities recognised by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBC also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected to and sought be bring them in the mainstream of the nation’s life by providing them opportunities and facilities. Therefore, when a member is transplanted into the Dalit, Tribes and OBCs, he/she must of necessity also undergo same handicaps, be subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation.”

 

5.      HISTORY OF RESERVATION IN EDUCATION:

·        RESERVATIONS BEFORE INDEPENDENCE:

Public employment and university reservations began while India was still under British rule. The British had a policy of reservations in public service posts for Muslims, Christians, Anglo-Indians, and other communal groups. British reservation policies were aimed at adjusting the political balance among different caste and religious groups and improving the plight of the disadvantaged. Reservations also served to ameliorate and appease minorities. Reservations were limited to recruitment for jobs and did not apply to promotions once an individual was employed. The granting of special preferences to India's minorities and underprivileged were viewed by many as part of Britain's divide-and-rule strategy, a plan designed to pit different segments of the Indian populace against each other so that Britain could remain dominant.

 

In pre independence India there were few provisions to safeguard fundamental human rights. As India's independence movement gathered momentum, conflicts with British officials became increasingly frequent. Repressive actions by British authorities bolstered demands for constitutional guarantees of fundamental rights. The protection of these rights was not realized until the creation of the Indian Constitution.¹⁹

 

In the Indian context, reservations were introduced during the last decades of the 19^the century at a time when the subcontinent could be broadly divided according to two main forms of governance – British India and the 600 princely states. Some of these states were progressive and eager to modernize through the promotion of education and industry and by maintaining unity among their own people. Mysore in south India and Baroda and Kolhapur in western India took considerable interest in awakening and advancement of the minorities and deprived sections of the society. It should not surprise us then that the very first records of implementing reservations policies are from these princely states.

 

·        HISTORY OF THE PRACTICE:

India is divided into many endogamous groups, or castes and sub-castes, as a result of centuries of practicing a form of social hierarchy called the caste system. Proponents of reservation policy says that the traditional caste system, as it is practiced, leads to severe oppression and segregation of the lower castes and limited their access to various freedoms, including education. Caste, according to ancient scriptures such as "Manu Smriti", is "Varnasrama Dharma", which translates to "offices given according to colour". The practice of caste in India followed this rule.

·        1921-Madras Presidency introduces Communal G O in which reservation of 44 per cent for non-Brahmins, 16 per cent for Brahmins, 16 per cent for Muslims, 16 per cent for Anglo-Indians/ Christians and eight per cent for Scheduled Castes.

·        1935-Indian national congress passes resolution called Poona Pact to allocate separate electoral constituencies for depressed classes.

·        1942-B.R.Ambedkar established the All India Depressed Classes federation to support the advancement of the scheduled castes. He also demanded reservations for the Scheduled castes in government services and education.

·        1947-India obtained Independence. Dr. Ambedkar was appointed chairman of the drafting committee for Indian Constitution. The Indian constitution prohibits any discrimination based on religion, race, caste, sex and place of birth. But, while providing equality of opportunity for all citizens, the constitution also contains special clauses to ensure reservation, "for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes". Separate constituencies allocated to Scheduled Castes and Tribes to ensure their political representation for 10 years.(These were subsequently extended for every 10 years through constitutional amendments).

·        1979 Mandal Commission was established to assess the situation of the socially and educationally backward.^[5] The commission didn't have exact figures for a sub-caste, known as the Other Backward Class(OBC), and used the 1930, census data, further classifying 1,257 communities as backward, to estimate the OBC population at 52% ²⁰

·        1980, the commission submitted a report, and recommended changes to the existing quotas, increasing them from 22% to 49.5%^[5].As of 2006 number of castes in Backward class list went up to 2297 which is the increase of 60% from community list prepared by Mandal commission.

·        1990, Mandal commission recommendations were implemented in Government Jobs. Student Organisations launched nationwide agitations. Rajiv Goswami Delhi university student attempted self-immolation. Many students followed suit.

·        1991 Narasimha rao Government introduced 10% separate reservation for Poor among Forward Castes.

·        1992 Supreme Court upheld reservations to Other backward classes. Also see Reservations and Judiciary section

·        1998, Central Government conducted large nationwide survey for the first time to estimate economical and educational status of various social groups.. The National Sample Survey puts the figure at 32%. There is substantial debate over the exact number of OBC's in India, with census data compromised by partisan politics. It is generally estimated to be sizable, but lower than the figures quoted by either the Mandal Commission or and national Sample Survey.²¹ Mandal commission has been criticised of fabricating the data. National surveys indicated that status of OBC is comparable to Forward castes in many areas.

·        2005 93rd Constitutional amendment brought for ensuring reservations to other backward classes and Scheduled castes and Tribes in Private Educational institutions

·        2006 Reservations introduced for Other backward classes in Central Government Educational Institutions. Total Reservation went up to 49.5%. Also See Recent Developments

·        2007 Supreme Court give stayed on OBC reservation in Central Government Educational Institutions.

 

6.      RESERVATION IN ADMISSIONS:

The question of the reservation has become very big socio-politico of the day. There many arguments are going on for the issue relating to reservation. Because very limited opportunities are available in the country. Therefore many deserving candidates thus feel frustrated because of reservation for the less deserving persons and they seek to challenge the scheme of reservation as unconstitutional on the ground of Articles 14, 15, and 16.

Fixation of a district-wise quota on the basis of the district population to the total State population for admission to the State medical colleges has been held to be discriminatory. The object in selecting candidates for admission is to get the best possible material for admission to colleges. Whether selection is from the socially and educationally backward classes or form the general pool, the object of selection must be to secure the best possible talent from the two sources. But his purpose cannot be achieved by allocation of seat district-wise as better qualified candidates form one district may be rejected while less qualified candidates from other districts may be admitted.²²

 

As a sequel to the above pronouncement, the State Government introduced a new scheme of admissions to medical colleges. These colleges in the State were grouped into several units and an application could seek admission to a unit. This scheme was also held to be void as being violative of Article 14 because the students in some of the units were in a better position than those who applied in other units. Supreme Court characterized the scheme as discriminatory against some students.²³

For admission to the medical college in the State, 60 per cent seats were to be filled on merit, 20 per cent from Scheduled Castes and other reserved categories including socially and educationally backward classes and the remaining 20 per cent of the seats were earmarked for “ensuring rectification of regional imbalances.” In Nishi Meghu v. State of Jammu and Kashmir²⁴, the classification made for “rectification of regional imbalances” was declared invalid as being too vague as areas suffering from imbalances had not been identified. Thereafter, the State Government identified certain villages as socially and educationally backward for applying the principle of “rectification of regional imbalances” in different parts of the State. The Supreme Court again held in Arti Sapru v. State of Jammu and Kashmir²⁵ that the classification suffered from the vice of arbtrariness, because there was no intelligible data before the Court for sustaining the classification. The Court invoked the principle of advocate in Pradip Tandon v. State of UP.²⁶

 

In case of Prasanna v. Director-in-Charge, LIT, Nagpur,²⁷ where the Nagpur University made some reservation for words of the university employees for admission to the Institute of Technology. The reservation was sought to be justified on the ground of ‘welfare of the employees’. The High Court held the scheme to be irrational. Also in case of Teachers Association, Silchar Medical College v. State of Assam,²⁸ the reservation seats in medical colleges for sons and daughters of employees serving in the Health Department of the State was quashed as being arbitrary and irrational.

 

But after all it has to be noted that the reservation falls under Art. 15 (1) and not under Art. 15 (4) and this can be valid only if it fulfills the tests of reasonable classification as laid down under Art. 14.

 

The U.P. government made reservation of seats in the State medical colleges in favour of two classes of candidates—(1) those who came from hill areas and Uttrakhand. (2) Those who came from rural areas. The Supreme Court upheld reservations in faour of candidates from hill areas and Uttrakhand as it was satisfied that the people therein were socially and educationally backward, but reservation in faour of rural people was held unconstitutional. The rural population being 80 per cent of the entire State population, the Court found it incomprehensible as to how such a large population could be regarded as backward, thus, the Court ruled that the reservation for rural areas as such could not be sustained on the ground that the rural population represented socially and educationally backward class of citizens. The Court held that rural element did not make it a class.

 

The Court refuses to accept the test of poverty as the ‘determining factor of social backwardness’. Poverty is not the common trail of rural people alone; it is widespread in India and to take poverty as the exclusive test would mean the a large population in India is held backward.²⁹ Similarly in case of Janki Prasad v. State of Jammu and Kashmir,³⁰ Court did not approve declaration of ‘small cultivators’ and ‘low paid pensioner’ as backward.

 

Court ruled that the residents of certain areas may remain in primitive conditions because of lack of communication, socially and educationally backward. The poverty is relevant factor to determine social and educational backwardness, but it cannot be an exclusive or dominant factor.³¹ Ultimately the Supreme Court said that the primary consideration for selecting candidates for admission to medical colleges is merit. But departure from the merit principle is permissible where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals. Merit principle may thus be departed from either in State interest or on the consideration of a region’s claim for backwardness.³²

 

The Court pointed out that the principle of selection can be diluted on the ground of regional backwardness. If the State Government starts a medical college in a backward region, and reserves most of the seats therein to the students from the region, then such reservation or preferential treatment cannot be regarded as discriminatory. Students from backward region can hardly compete with the students from advanced region. Reservation or preference in such a case may be of a high percentage but cannot be total.

 

The Court however accepted reservation up to 70% of the total number of open seats for admission to the M.B.B.S. Course in the ground of ‘residence’. But he 30% of all seats should remain open and available for admission to students on an All-India basis irrespective of the State or University from which they come.³³ Thus the 70% of total number of open seats in a medical college is justified for two reasons;

1)     Many student are not able to avail of medical education away from their region, as because of lack of resources, they cannot study far away from their places of residence, and may, thus, be deprived of medical educations;

2)     Girl students may find it difficult to pursue medical education in another region beyond their places of residence.

 

·        POST GRADUATE COURSES:

As far as the Post Graduate Course is concerned the basic proposition laid down by the Supreme Court is that admission to post-graduate courses should be based strictly on merit and that there should be no dilution of standards in such course. In number of cases, the Supreme Court has expressed doubt whether there can be any reservation at the post-graduate level for backward classes. In a post-graduate medical course, only M.B.B.S. candidates can be admitted. Can an M.B.B.S. be regarded as backward even though he may belong to a backward class. Reservation in the higher courses would perpetuate the pernicious theory “once backward always backward.” The Court has advocated the principle that the higher you go in the ladder of education, the lesser should be the reservation.

Generally speaking, at the post graduate level, it is merit that ought to count. Thu, the Supreme Court has observed in Jagdish Sarmn (Dr.) v. Union of India,³⁴ that to encourage SC/ST/OBC students, State may reserve seats for them at the under graduate level, but at the level of Ph. D., M.D. or levels of higher proficiency, “equality”, measure by matching excellence, has more meaning and cannot be diluted much without grave risk.” At the highest scales of proficiency or specialty, “the best skill or talent, must be hand-picked by selecting according to capability.” At that level, “where international measure of talent is mad, where losing one great scientist or technologist-in-the making is a national loss, the considerations we have expanded upon as important lose their potency.”

 

In Pradeep Jain (Dr.) v. Union of India,³⁵ reservation for the admission in post-graduate course the where ordinarily merit should prevail. The court emphatically stated that excellence cannot be allowed to be compromised by any other considerations because that would be detrimental to national interests. Moreover the court stated that though residence within the State would not be a ground for reservation in admissions to post-graduate courses, but certain percentage of seats could be reserved on the basis of ‘institutional preference’.  But such reservation should not in any event exceed 50% of the total number of open seats available for admission to the post-graduate course. But court directed that in the admission on post-graduate courses for super-specialties are concerned there should be no reservation and it will purely based on merit.

 

But the Supreme Court has now changed its stance on this question and has rule that there may be reservation of seats for backward classes in admission to pot-graduate, speciality or super-specialist courses in medicine. The court has argued that after admission, every student has to undergo the same courses and the same examination even though at the admission stage the cut-off point may be lower for backward candidates than for general candidates.³⁶

 

In Dr. Preeti Sagar Sriwastata v. State of Madhya Pradesh³⁷ in this case for the admission to post-graduate degree/diploma courses in medicine, candidates were required to appear at an entrance examination. The State Government fixed a cut-off percentage of 45% marks in this examination for admission of the general category students while no cut off percentage of marks was fixed for SC/ST candidates. This meant that there was no minimum qualifying marks in the entrance examination prescribed for the reserved category candidates for admission to the post-graduate medical course. This was challenged and the Supreme Court quashed the same.

Here the Supreme Court said that even for the reserved category candidates, there should be some minimum qualifying marks if not the same as prescribed as bench marks for general category students. Thus, there cannot be zero qualifying marks for reserved category candidates in the entrance test for admission to the post-graduate course. The government cannot say that even if these candidates have not obtained even the minimum qualifying marks they must still be selected for post-graduate course. This could not be done. Therefore, if these students fail to secure the minimum qualifying marks, then the seats reserved for them should be not go waste but should be released for the candidates of the general category. Otherwise there would be a national loss.

In case of Dr.Sadhna Devi v. State of Uttar Pradesh³⁸, the Supreme Court insisted that for admission to post graduate medical course, there ought to be prescribed a minimum cut off percentage of marks at the entrance examination for Schedule Castes, Scheduled Tribes and other Backward Classes. It would be unconstitutional as being violative to right to equality to keep this cut off point at zero percent.

 

·        RESERVATION IN PRIVATE SECTOR EDUCATIONAL INSTITUTIONS:

The Indian Parliament has passed the 104th Constitution Amendment Bill, which provides reservations for the socially and educationally backward classes, besides the Scheduled Classes and Scheduled Tribes, in all private aided and unaided educational institutions. Which do not receive government funding, are under the purview of the State. By passing the amendment, states are allowed to enact quota laws for socially and educationally backward classes or for SC/STs in unaided private educational institutions. The move by the GoI to allocate a fixed number of seats to backward classes and SC/STs in private sector institutes is however not accompanied with an adequate plan to back up these reservations financially. As course fees and additional costs of studying, especially in private institutions, can be substantial, the lack of financial support to backward classes and SC/STs severely impedes their ability to actually take up the seats reserved to them. For reservation in education not to become a hollow promise, an adequate financial support structure for education of backward classes and SC/STs is of crucial importance. So far, the financing of educational needs of students in India has been left to the banking sector, with public sector banks increasingly offering student loans to allow poorer students to realize their educational capacities and ambitions.

 

7.      THE CENTRAL EDUCATIONAL INSTITUTION (RESERVATION IN ADMISSION) ACT, 2006

The Ninety-Third Amendment to the Constitution of India came into force on January 20, 2006, and allows the government to make special provisions for the admission “of any socially and educationally backward classes of citizens” to “educational institutions including private educational institutions, whether aided or unaided by the State.”

 

Ashok Kumar Thakur v. Union of India³⁹,the Government in the year 2007 passed, The Central Educational Institutions (Reservation in Admission) Act, 2006. As a result a PIL was filed before the Supreme Court in the year 2007 before a Division bench and a stay was granted from implementation of the Act.

The basic issues, which need to be considered by the larger Bench, are: Whether the 93rd Amendment Act, 2005 and Article 15(5) are unconstitutional as being violative of the basic structure of the Constitution? If the Amendment is valid, how is it to be interpreted and implemented? Whether the 93rd Amendment insofar as it empowers the government to make special provisions by way of reservation in educational institutions (including private institutions) is violative of the basic structure of the Constitution? The government many times pleaded for vacating the injunction but wad futile, and the division bench on 29th March said that without full hearing this will not be implemented and gave the date in the month of August. Meanwhile the government approached the CJI and said that matter should be referred to larger bench. The CJI sent it before the same bench on 17th May Solicitor General of India argued that this case can be examined only before a Constitutional bench, the court in reply asked the government to frame specific questions for which they wanted clarification from a constitutional bench.

 

8.      EXTENT OR QUANTUM OF RESERVATION

·        WHAT IS THE EXTENT OF RESERVATION THAT CAN BE MADE UNDER ARTICLE 15(4)?

Clause (4) was added by the Constitution (First Amendment) Act, 1951, as result of the decision of the Supreme Court in- State of Madras v. Chmapakam Dorairajan⁴⁰. In that case the Court struck down the communal G.O. of the Madras Government which, with the object to help the backward classes, had fixed the proportion of students of each community that could be admitted into the State medical and engineering colleges. Although the Directive Principles of State Policy embodied in Article 46 of the Constitution lays down that the State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice, the court held that “the Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of fundamental rights”. Now clause (4) enables the State to make special provisions for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Such provisions include reservations or quotas and can be made in the exercise of executive powers without any legislative support.⁴¹

 

The Supreme Court has set its face, generally speaking, against excessive reservation, for it is bound to affect efficiency and quality be eliminating general competition.

 

For the first time, in M. R. Balaji v. State of Mysore⁴²the question was raised before the Supreme Court relating to the extent of special provision which the State can make under Art. 15 (4). In this case, reservation up to 68% was made by the State of Mysore for backward classes for admission to the State medical and engineering colleges. The break-up of the reservation was as follows: 50% seats for backward and ‘more’ backward classes; 15% seats for Scheduled castes; 3% seats for the Scheduled Tribes. In effect, 68% seats were reserved in medical, engineering and other technical colleges for the weaker sections of the society, leaving only 32% seats for the merit pool.

 

The State even argued that since Art. 15(4) does not contain any limitation of the State’s power to make reservation, cent percent reservation could be made in favour of backward classes in the higher educational institution if the problem of backwardness in State so demanded. The Supreme Court rejected this extreme argument. They also rejected the rule of 68% reservation.

 

The Court agreed, on the one hand, that Art. 15(4) must be read with Art. 46, a directive principle, and steps ought to be taken to redress backwardness and inequality from which the backward classes, scheduled Castes and Scheduled Tribes suffer otherwise for them political freedom and Fundamental Rights would have little meaning. On the other hand, the Court insisted that Art. 15(4) being a special provision cannot denude Art. 15 (4) of all its significance. Art. 15(4) “is not a provision which is exclusive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society.”  The Court observed:

 

“It is because the interest of the society at large would be served by promoting the advancement of the weaker elements in the society that Art. 15(4) authorises special provision to be made. But if a provision which is in he nature of an exception completely excludes the rest of the society that clearly is outside the scope of Art. 15(4). It would be extremely unreasonable to assume that in enacting Art. 15(4) Parliament intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens consisting of the rest to the society were to be completely ignored.”

 

The Court emphasized that a special provision contemplated by Art. 15(4) must be within reasonable limits. The interests of the weaker sections of society have to be adjusted with the interests of the community as a whole. The Curt insisted that considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the reasonableness of a special provision under Art. 15 (4). The Court observed on the point:

 

“The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the county is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by wholesale reservation of seats in all technical, medical or engineering colleges or institutions of that kind.”

 

Thus, the Supreme Court set its face against excessive reservation under Art. 15(4), for it may affect efficiency by eliminating general competition. The general principle laid down by the Court is that the maximum limit of reservation should not more than 50% for all classes under Art. 15(4), viz., backward classes, Scheduled Castes and Scheduled Tribes Thus, reservation of 68% was declared void in Balaji. The Court observed that the interests of the weaker sections of the society need to be adjusted with interests of the society as a whole.

 

In Balaji, the Supreme Court clearly indicated that in giving effect to reservations for SCs, STs and OBCs, a balance ought to be struck so that the interests of the backward classes, STs and SCs are properly balanced with the interests of the other segments of the society. In order to safeguard the interest of the reserved classes, the interests of the community as a whole cannot be ignored. It has to be remembered that Art. 15(4) is an enabling provision and its objective is to advance the interests of the weaker elements in society. Reservation under Art. 15(4) must be within a reasonable limit. If a provision under Art. 15(4) ignores the interests of the society as a whole, it would be clearly outside the purview of Art. 15 (4). It may be noted that the overall limit of 50% reservation is only for the categories mentioned in Art. 15(4); there could be additional reservation for other classes.

 

For admission to the State medical colleges, the Madhya Pradesh Government made the following reservation of seats: Schedule Castes 15% Schedule Tribe 15%, Women candidates, 15%; Children of military personnel, 3%; Nominees of the Central Government, 3%and nominees of Jammu & Kashmir Government, 3%. The Scheme was challenged but the Supreme Court upheld it in State of Madhya Pradesh v. Nivedita Jain.⁴³

 

9.      RESERVATION AND ARTICLE 14

"YOU do not take a person who, for years, has been hobbled by chains, bring him to the starting line in a race and then say, 'you are free to compete with all others'. It is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates"⁴⁴.

 – Lyndon Johnson

Article 14 embodies the general principle of equality before the law. A specific application of the same principle is provided in Article 15. Article 15 concretises and enlarges the scope of the Article 14. It prohibits certain classifications even though they may be justified under Article 14 and expressly asks for making certain classifications which may impliedly be within the reach of Article 14. Article 15 (1) specifically bars the state from discriminating against any citizen of the India on ground only of religion, race, caste, sex or place if birth, or any of them. But Article 15 (4) or Article 29 (2) does not prevent the state from making any special provisions for the advancement of any socially and educationally backward classes of citizen or for the Scheduled Castes and the Scheduled Tribes.

 

Article 15 (4) has to be read as a proviso or exception to Article 15 (1) and 29 (2). If a special provision is justified Article 15 (4), it cannot be challenged on the ground that it violates Article 15 (1) /29 (2).⁴⁵ However, the conditions which justify the departure from Article 15 (1) must be strictly shown to exist.⁴⁶ Clause (4) being an exception cannot be extended so as to destroy the guarantee of clause (1)⁴⁷. While this observation is correct, the othe observation that the social and educational backwardness must be similar to the backwardness which SC/SCT suffer is not correct after the Mandal judgement.⁴⁸

 

The Amendment provided the backdrop for passing the Central Educational Institutions (Reservation in Admissions) Act, under which a 27 per cent quota is proposed in institutions such as the IIMs to those who are known as Other Backward Classes. When the validity of the Amendment was challenged in the Supreme Court, the Central Government tried to defend it by affirming that it "does not violate the basic structure and is, in fact, intended to strengthen it by providing meaningful equality of educational opportunity by eliminating the existing inequality." It was further pointed out that "Reservation facilitated by the new Clause 15(5) is an important measure forming part of the social justice measures required to remove inequality, including social inequality, in all fields including education. The reservation policy is not disintegrative and is not against the unity and integrity of the nation."

Providing 27 per cent quota for the Other Backward Classes in higher educational institutions is a constitutional necessity to ensure not formal or technical equality but real and substantial equality.⁴⁹ Providing reservation for the OBCs was a fundamental feature of the Constitution, and it could not be attacked on the ground of violation of Article 15 (1) (prohibition of discrimination on grounds of religion, race, caste, etc).

 

CONCLUSION

The reservation for the ‘Socially and educationally backward classes of citizen’ in education has to be made by the State. In draft Constitution of India there were not any provisions for the reservation for ‘socially and educationally backward classes of citizen’. Latter on the Article 15 (4) has been added and Constitution came with the special provision of reservation for the backward class of citizen.

 

Object of the Government was to uplift the lower caste people. And there were many disadvantages for this lower caste in historical period. Thus they became backward and deprived from many opportunities. They could not able to gain anything. Basically they are known as “Dalit”. Thus they became socially and educationally backward. This backwardness is not only the socially backward but it also the educationally.

Now the state phase the problem that how to define the ‘socially and educationally backward classes of citizen. There the certain commission was established to find out the backward classes of citizen within the meaning of Article 15 (4) of the Constitution. After the report of the commission which was mainly based on the ‘Caste’ and ‘occupation’, the various judicial interpretations came into picture. By the various decisions the judiciary is trying to interpret the Article 15 (4) and limiting the reservation, means what would be the extent of the reservation.

 

The Government is trying to develop the educational condition of the backward classes coming with the several amendments in the Constitution. By the Ninety-Third Amendment to the Constitution of India came into force on January 20, 2006, and allows the government to make special provisions for the admission “of any socially and educationally backward classes of citizens” to “educational institutions including private educational institutions, whether aided or unaided by the State.” Thus Clause (5) of Article 15 for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or scheduled tribes insofar 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.

 

REFERENCE

1.       Laurence H. Tribe, American Constitutional Law 16-22, at 1523 (2d ed. 1988). Professor Tribe also indicates that one of the remedial goals of affirmative action is to create racial or gender diversity.

2.       Other countries, such as Japan and Israel, have also employed such forms of preferential treatment. Marc Galanter, Competing Equalities 562, n.15 (1984).

3.       Marc Galanter points out that the many names for affirmative action in India are similar to the different names used in the U.S. for affirmative action such as “reverse discrimination.” Other names that describe India's affirmative action programs include “special treatment,” “protective discrimination,” “special provision,” etc. Id. at 2-3.

4.       Indra Sawhney v. Union of India, 80 A.I.R. (S.C.) 477, 506 (stating that the popular name of the first Backward Classes Commission was the Kaka Kalelkar Commission, named after its chairman)

5.       M.R. Balaji v. State of Mysore, AIR1963 SC 649.

6.       Janki Prasad Parimoo v. State of Jammu and Kashmir, AIR 1973

7.       Supra note 4

8.       AIR 1964 SC 1823.

9.       AIR 1968 SC 1012.

10.     AIR 1972 SC 1375.

11.     State of Andhra Pradesh v. P. Sagar, AIR 1968 SC 1379

12.     Ibid.

13.     Triloki Nath v. State of  J&K, AIR 1969 SC 1.

14.     AIR 1976 SC 2381.

15.     AIR 1996 SC 1010.

16.     AIR1997 SC 3505.

17.     Supra note 3

18.     AIR 1996 SC 1010.

19.     India Constitution Parts. III and IV.

20.     Bhattacharya, Amit. "Who are the OBCs?". Retrieved on 2006-04-19. Times of India, April 8, 2006.

21.     Striking AIIMS docs live in a glass house-India-The Times of India

22.     P. Rejendran v. State of Madras, AIR 1968 SC 1012.

23.     A. Periakaruppan v. State of Tamil Nadu, AIR 1971 SC 2303.

24.     AIR 1980 SC 1975.

25.     AIR 1981 SC 1009.

26.     (1975) 1 SCC 267.l

27.     AIR1984 Bom. 176.

28.     AIR 1996 Gua 97.

29.     State of Uttar Pradesh v. Pradip Tandon, AIR 1975 SC 563.

30.     AIR 1973SC 930.

31.     State of Kerala v. Krishna Kashmir, AIR 1976 Ker. 54.

32.     Supra note 25.

33.     Dinesh Kumar v. Motilal Nehru Medical College, AIR 1985 SC 1959.

34.     AIR 1980 SC 820.

35.     AIR 1984 SC 1420.

36.     P.G. Institution of Medical Education & Research K.L. Narasimham, AIR 1997 SC 3678.

37.     AIR 1999 SC 2894.

38.     AIR 1997 SC 1120.

39.     Decision of 17 May 2007.

40.     AIR 1951 SC 226.

41.     Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

42.     Supra note 6

43.     AIR 1981 SC 2045.

44.     In a famous speech in 1965 that laid the foundations for the Affirmative Action.

45.     Supra note 6

46.     Supra note 9

47.     Supra note 37

48.     Supra note 3

49.     Senior Counsel Ram Jethmalani argued in Supreme Court, The Hindu, Wednesday, Oct 31, 2007

 

 

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