THE CONSTITUTIONAL VALIDITY OF RESERVATION IN EDUCATIONAL INSTITUTIONS AND PUBLIC EMPLOYMENT

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This Article is written by Priyanka Shukla of the 3^rd Semester of Veer Bahadur Singh Purvanchal University, a Legal Research Intern under Legal Vidhiya

ABSTRACT

This paper examines the constitutional validity of affirmative action policies in India that aim to promote representation for historically disadvantaged communities in public sector education and employment. It discusses the rationale for introducing reservation policies as a means of promoting social justice and equality. Key Supreme Court rulings that have evaluated challenges to reservation are analyzed to understand the legal principles established. While reservations have been upheld as constitutionally valid for remedying past discrimination and advancing substantive equality, there is a need for periodic review to ensure they continue serving their intended socio-economic empowerment objectives.

In conclusion, over seven decades after implementation, it is appropriate to re-evaluate the scope and ongoing need for reservations while upholding equality of opportunity and representation. The criteria used to determine reservation quotas and eligible groups may also benefit from reconsideration. Continuously reviewing and adjusting reservation policies based on evolving social conditions is necessary to ensure alignment to promote a just, non-discriminatory, and inclusive society. With expanding access and diversity in education and jobs, a gradual transition towards a more substantive equality-based framework may be suitable if carried out through extensive consultations in a phased, thoughtful manner with social harmony as the top priority.

KEYWORDS – Reservation, economically weaker, Constitutional validity, socially and educationally backward class.

INTRODUCTION

“Slavery does not merely mean a legalized form of subjection. It means a state of society in which some men are forced to accept from others the purposes which control their conduct” – Dr. Bhimrao Ramji Ambedkar

All human beings are equal regardless of attributes like caste, religion, gender, or place of birth. These are factors determined by birth and not choice, so no individual has the moral authority to discriminate against another based on them. However, historically disadvantaged groups in society have faced barriers that prevented equal access to opportunities and rights.

Reservation policies were introduced to promote inclusion and remedy past discrimination against socially marginalized communities. The aim was to empower these groups and help them gain their basic rights to education, employment, and political participation. Scholars like Jyotiba Phule and William Hunter were early proponents of reservation as a means to achieve equality and justice in Indian society.

After independence, the framers of the Indian Constitution recognized caste-based discrimination as an obstacle to achieving an equitable society. Therefore, Articles 15 and 16 empowered the state to enact affirmative action for Scheduled Castes, Scheduled Tribes, and other disadvantaged groups. This addressed the historical denial of equal opportunities and redressed imbalances in access to education and public sector jobs. Reservation sought to remedy the effects of systemic discrimination and help disadvantaged communities progress socially and economically.

HISTORY AND EVOLUTION OF RESERVATION

The historical roots of India’s reservation system can be traced back to the ancient caste system.

PRE – INDEPENDENCE ERA

In 1902, Chhatrapati Shahu, the Maharaja of the princely state of Kolhapur, introduced reservations in favor of non-Brahmin and backward classes. The idea of reservations was also incorporated into the Government of India Act in 1909. In 1918, Raja Nalvadi Krishnaraja Wadiyar of Mysore established a committee to implement reservations for non-Brahmins in government jobs and education. One significant milestone in the pre-independence era was the “Poona Pact.” This was an agreement between Mahatma Gandhi and Dr. B.R. Ambedkar to have a single Hindu electorate, with Dalits having reserved seats within it. It is still a subject of debate whether the situation of Dalits would have been better if they had been granted separate electorates.

POST-INDEPENDENCE ERA

In 1951, Article 15(4) was added to the Indian Constitution through the First Amendment Act, thereby introducing reservation policies for Scheduled Castes (SCs) and Scheduled Tribes (STs). Later in 1991, the Mandal Commission recommended including Other Backward Classes (OBCs) in the scope of reservation as well. Set up under Article 340 of the Constitution, the Mandal Commission was chaired by B.P. Mandal to examine socially and educationally backward classes in India. It proposed reserving 27% of government jobs for the approximately 52% of the population that fell under the OBC category. The OBC list comprised 3743 castes, while the list of underprivileged depressed backward classes had 2108 castes. In 2019, the 103rd Constitutional Amendment Act provided 10% reservation in educational institutions and public sector employment for Economically Weaker Sections, an unreserved category. This was done while keeping in mind Article 335, which states that the interests of SCs, and STs shall be duly considered alongside the need for administrative efficiency when formulating reservation policies. The overarching aim has been to promote equitable access to opportunities for historically marginalized communities through affirmative action programs enshrined in the Constitution.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction, or condition about

(a) access to shops, public restaurants, hotels, and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.[1]

ARTICLE 16 OF THE INDIAN CONSTITUTION –
Equality of opportunity in matters of public employment (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.[2]

CASE LAWS REGARDING ARTICLE 15 AND ARTICLE 16:

State of Madras v. Smt. Champakan Dorairajan

The High Court of Madras invalidated the Communal Government Order. since the quota system which is rooted in caste opposed the Constitution of India. Both the petitions were concerned with Article 226 of the Constitution which is the grounds behind the infringement of the fundamental right to persuade into a college. Subsequently, the State of Madras submitted a petition to the Supreme Court challenging the Madras High Court’s ruling. The Supreme Court concurred with the assertion that the categorization within the Communal Government Order, as provided by the Madras government, was based on religion, caste, and race. This was deemed a clear violation of the Constitution of India and a breach of Article 29(2) in Part III of the Constitution, which safeguards the fundamental rights of Indian citizens. The Court deemed that the State cannot acquire a particular place to allow admission to the applicants based on their religion, caste, and race which is infringing the proviso of Article 16 (2). Refusing admission based on caste is a violation of Article 15(1). The provision of Communal G.O. The court introduced provisions that were subsequently declared invalid under Article 13 of the Constitution. The court rendered a verdict in favor of Champakam Dorairajan. However, a pertinent question arose: “Do Fundamental Rights supersede the Directive Principles of State Policy (DPSP)?” “It will always on every occasion the Fundamental Rights that will triumph”.[3]

The court ruled the order to be flawed on multiple legal grounds. The first defect in the Mysore order was it was based solely on caste without regard to other relevant factors and this was not permissible under Article 15(4). Though caste among Hindus could be a relevant factor to consider in determining the social backwardness of a class of citizens, it must not be made the sole and dominant test on behalf. Christians, Jains, and Muslims abstain from the caste system, making the application of a caste-based test inapplicable to them. In as much as identifications of all the backward classes under the impugned order had been made solely based on caste, the order was bad.

In this case, the Supreme Court held the following:

1. Reservation cannot be more than 50%.

2. The categorization of “backward” and “more backward” is deemed invalid.

3. Caste cannot be the only criterion because Article 15(4) talks about class and class are not synonymous with caste. So, factors such as poverty should be considered.[4]

The Supreme Court delivered its unanimous judgment on January 10, 2020, upholding the validity of the 103rd Constitutional Amendment providing 10% reservation for Economically Weaker Sections.

In this case, the Supreme Court held the following:

1) Does not violate the 50% ceiling on total reservations set in the Indra Sawhney case, as it is based on economic rather than social criteria.

2) Does not impact existing quotas for Scheduled Castes, Scheduled Tribes, and Other Backward Classes.

3) Does not affect the basic structure of the Constitution, being a legitimate step to promote social and economic equality.

4) Is an enabling rather than mandatory provision, allowing but not requiring institutions to provide 10% EWS seats within the 50% limit.

5) Must be implemented carefully without diluting prior reservations, ensuring the total does not exceed the 50% ceiling after accounting for existing quotas.

In summary, the landmark judgment endorsed EWS reservation constitutionally while underscoring the need for prudent, data-driven implementation that safeguards pre-existing reservation frameworks.[5]

CREAMY LAYER DOCTRINE

The concept of Creamy layer exclusion was first introduced in 1992, in the case of Indra Sawhney v. Union of India[6][xi] (also known as the Mandal Commission case). In this case, a nine-judge bench held that: The Creamy layer, that is, the advanced section among the OBC must be excluded from the benefits of reservation. It was also held that this principle should not apply to SCs and STs. The Apex Court also asked the central government to fix the criteria for the identification of the creamy layer. In 1993, the government established a ceiling limit for the creamy layer at INR 1 lakh. It subsequently increased to 2.5 lakh in 2004, 4.5 lakh in 2008, 6 lakhs in 2013, and 8 lakhs since 2017.

The Application of the Creamy Layer Exclusion Principle to SCs & STs

Chief Justice of India, K.G. Balakrishnan, said that the creamy layer principle is inapplicable to scheduled castes and scheduled tribes because it is merely a principle of identification of the backward class and not applied as a principle of equality. But in M. Nagaraj vs Union of India[xii], the Supreme Court approved the decision of the parliament and extended the creamy layer exclusion principle to SCs and STs

The court held that: the socially, educationally, and economically advanced cream of Scheduled Castes/Scheduled Tribes communities must be excluded from the benefits of reservation in government services to transfer quota benefits intended to provide support to the most vulnerable individuals, ensuring that they are not deprived of these opportunities by those within the same class who occupy the highest echelons. The exclusion principle represents a significant step towards achieving this objective.

SEVERAL OTHER ARTICLES OF THE INDIAN CONSTITUTION RELATED TO RESERVATION :

These articles are relevant to reservation policies for disadvantaged groups. Article 15(5) introduced reservation in private educational institutions through the 93rd Amendment in 2006.
The 81st amendment added Article 16(4B) in 2000, allowing unfilled SC/ST vacancies of one year to be carried forward to the next, removing the 50% cap on total annual vacancies.
Article 39A under Directive Principles mandates free legal aid for economically backward classes.
Articles 341, 342, and 342A empower the President to notify Scheduled Castes, Scheduled Tribes, and Other Backward Classes.
Articles 338, 338A, and 338B establish the National Commission for Scheduled Castes, Scheduled Tribes, and Other Backward Classes.
Articles 330 and 332 provide reservations in Parliament and state assemblies for SCs and STs.
Articles 243D and 233T mandate the reservation of seats in local bodies like panchayats and municipalities for SCs and STs.
Article 335 states administrative efficiency must consider SC and ST interests.
The Fifth Schedule governs Scheduled Areas and ensures Tribes Advisory Councils with tribal majority in non-Scheduled Areas states.
The 103rd amendment created 10% reservation for Economically Weaker Sections in public sector jobs and public/private education. This aims to promote the inclusion of disadvantaged economic groups.

INTERNATIONAL PERSPECTIVE OF RESERVATION

The United States has a policy of Affirmative action.
Brazil has a Vestibular policy.
Japan has policies in place to assist the Burakumin, who are considered as Japan’s outcasts.
Employment equity (Canada) impacts Aboriginals and minorities in Canada. Women and ethnic minorities are given priority in China.
Quotas for Swedish speakers exist in Finland. Germany’s Gymnasium system has quotas.
Israel implements affirmative action policies. Albanians have quotas in Macedonia.
Malaysia has a new economic policy called the Malaysian New Economic Policy. Affirmative action is in place in New Zealand for Maoris and Polynesians.
Women must make up 40% of the PCL boards in Norway. Romas in Romania are subject to quotas.
Employment equity exists in South Africa. South Korea maintains a policy of affirmative action for Chinese and North Korean citizens.
Sweden has a broad affirmative action policy.

RECENT DEVELOPMENTS RELATED TO RESERVATION IN EDUCATIONAL INSTITUTIONS AND PUBLIC EMPLOYMENT

The Constitution (106th Amendment) Act 2023(Nari Shakti Vandan Adhiniayam) :

On September 28, 2023, the Ministry of Law and Justice issued a notification regarding the Constitution (One Hundred and Sixth Amendment) Act, 2023, aimed at further enhancing the Constitution of India. The Amendment introduces new provisions within Article 239-AA, focusing on:

1. Reservation of seats for women in the Legislative Assembly of Delhi.

2. Allocating 1/3rd of seats for Scheduled Castes to be reserved for women.

3. Reserving 1/3rd of seats filled by direct election for women, including those from Scheduled Castes.

Additionally, Article 330-A has been incorporated, about:

1. Reservation of seats for women in the Lok Sabha (House of the People).

2. Allocating 1/3rd of the total seats reserved under Article 330(2) for women belonging to Scheduled Castes or Scheduled Tribes.

3. Reserving 1/3rd of seats filled by direct election for women, including those from Scheduled Castes and Scheduled Tribes.

Furthermore, Article 332-A has been introduced, addressing:

1. Reservation of seats for women in the Legislative Assembly of every State.

2. Allocating 1/3rd of the total seats reserved under Article 332(3) for women belonging to Scheduled Castes or Scheduled Tribes.

3. Reserving 1/3rd of seats filled by direct election for women, including those from Scheduled Castes and Scheduled Tribes. It’s important to note that seat rotation will be implemented following the delimitation exercise, and the Act will be in effect for 15 years from its commencement.

The government has communicated to the Supreme Court that reservations are applicable even in the case of temporary appointments.

The government has assured the Supreme Court that it has issued directives to enforce reservations for Scheduled Castes, Scheduled Tribes, and Other Backward Classes, even in temporary appointments. This assurance came in response to a Public Interest Litigation (PIL) that raised concerns about the inadequate implementation of reservations in government contract jobs and educational institutions. According to the government, reservations for these candidates will be applicable in temporary appointments lasting a minimum of 45 days, as stipulated by the policy. The PIL, filed by social worker Imran Ahmad and highlighted by senior advocate Sanjay Hegde, pointed out that outsourced and contractual positions in various government departments and deemed universities were not adhering to the reservation policy. The PIL cited responses obtained through Right to Information (RTI) requests from various government ministries, which indicated a lack of category-wise data on temporary employees in the government sector. In its affidavit, the government also acknowledged that the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes had observed discrepancies in the implementation of the instructions outlined in the Office Memorandums. Consequently, the government issued an Office Memorandum to all ministries and departments in November 2022, addressing the issue. Additionally, the Department of Personnel and Training (DoPT) informed the Supreme Court that a mechanism was in place to address instances of non-compliance with the Office Memorandum dated November 21, 2022. The bench, comprising Justices Sanjiv Khanna and SVN Bhatti, emphasized in their October 3 order that any violation of this Office Memorandum could lead to aggrieved parties seeking appropriate legal remedies. The PIL underscored that, based on RTI responses from various Central Government ministries, the reservation policy was not effectively implemented for contractual and outsourced manpower in temporary appointments. It also highlighted the lack of on-ground implementation of the reservation policy for protected classes in universities receiving grants from the Central Government.

CONCLUSION

While reservations aim to remedy historical injustice and promote equitable development, there are valid concerns about their impact on merit, efficiency, and equal treatment. term reliance on reservations risks fostering a culture of dependence and may undermine the goal of creating an egalitarian, casteless society, Given the continued socio-economic disparities faced by underprivileged groups, phasing off without alternative empowerment measures could also perpetuate. balance, the Supreme Court that reservations are obligations of their objectives of achieving substantive equality are met. However, there is a need for periodic review of reservation policies and communities to ensure a judicious balance between competing demands of social justice. Overall, within reasonable limits and scope, reservations appear to be constitutionally valid means to promote the fundamental rights and directive principles of the Indian Constitution.

REFERENCES