New Delhi: The debate around reservations has been one of the most volatile in the country and the Supreme Court’s decision to examine the validity of a Maharashtra law, which reserves seats for Marathas in jobs and educational institutions, has brought it back into focus.
A five-judge bench will commence hearings on the law Monday and, most pertinently, will hear arguments on the need to reconsider the landmark Indra Sawhney judgment by the top court. The 1992 judgment imposed a 50 per cent ceiling on vertical reservations for Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). In other words, reservation to these categories cannot exceed 50 per cent of the total job appointments.
This restriction, according to the ruling, can be breached only under exceptional circumstances.
Therefore, the top court will have to decide whether the Maharashtra law, which breaches the 50 per cent cap by providing 16 per cent reservations to Marathas, qualifies as an exception.
The court will also address another important question — whether a state can declare a caste as socially and educationally backward since the 102nd amendment to the Constitution gave the powers to the President to notify backward classes.
If the Constitution bench determines that the Indra Sawhney judgment needs reconsideration — in light of the various amendments, subsequent judgments and altered social dynamics of society — the matter will be referred to an 11-judge bench for a detailed hearing.
Ahead of this landmark hearing, here is a primer on the important Supreme Court judgments and constitutional amendments made on reservations in jobs and educational institutions.
Reservation under Constitution
The Indian Constitution enumerates a number of provisions that provide for reservation to the vulnerable sections of society.
Article 15 of the Constitution prohibits the discrimination of any citizen on the basis of religion, race, caste, sex or place of birth. However, its Clause 4 carves out an exception and allows special provisions for the advancement of SCs/STs, and socially and educationally backward classes.
Similarly, while Article 16 states that there shall be equality of opportunity for all citizens in government employment, Clause 4 allows provisions for the reservation of appointments in favour of any backward class that are not adequately represented in public services.
Indra Sawhney verdict
The Indra Sawhney verdict in November 1992 is considered a landmark judgment on reservations.
The verdict upheld the office memorandum that had implemented the Mandal Commission’s recommendation of providing 27 per cent reservation to OBCs in jobs, in addition to the 22.5 per cent reservation for SCs/STs.
The Mandal commission was set up in 1979 under the Morarji Desai government and was chaired by B.P. Mandal to identify socially or educationally backward classes. The commission’s report recommended that members of OBCs be given 27 per cent reservations for jobs under the central government. In 1990, the V.P. Singh-led government set out to implement the recommendations but it was challenged in court amid widespread protests.
On 16 November 1992, a nine-judge bench declared that the executive order to implement the recommendations was valid.
The court recognised “social and educational backwardness” as a criterion for reservation, but at the same time reiterated that such a quota should not exceed 50 per cent. The ceiling was fixed to ensure efficiency in administration, according to the order, and will apply unless in “exceptional circumstances”.
Furthermore, the court declared that reservation in promotion was unconstitutional and also introduced the concept of ‘creamy lawyer’.
The court had asked the central government to fix a threshold for income, property and status to identify the ‘creamy layer’ of backward classes and the benefit of reservation is not extended to them.
Amendments to restriction on reservation in promotions
Since the Indra Sawhney judgment, several amendments have been made to the restrictions imposed by the verdict on reservation in promotions.
In 1995, under the 77th amendment, Clause 4A was added to Article 16 to give the benefit of reservation in promotion only to SCs and STs.
Five years later, in June 2000, Clause 4B was inserted to allow the government to treat the backlog of unfilled reserved vacancies as a separate group to which the 50 per cent restriction will not apply. This was the 81th constitutional amendment.
Three months later, a proviso was added to Article 335, under the 82nd amendment, which relaxed qualifying marks and other criteria for reservation in promotion for SC/ST candidates.
In 2001, the 85th amendment, introduced further changes to Article 16(4)(a) to give the benefit of consequential seniority to SC/ST candidates promoted through reservation.
Under consequential seniority, if a reserved category candidate is promoted before a general category candidate because of reservation in promotion, then for subsequent promotion the reserved candidate retains seniority.
The move to apply this amendment retrospectively, from 17 June 1995, also sparked a controversy.
A batch of petitions were filed before the Supreme Court challenging the four amendments mentioned above that introduced reservation in promotion.
In 2006, the top court validated all four amendments in what came to be known as the Nagaraj verdict.
However, the five-judge bench introduced certain conditions for reservation in promotion. It made it compulsory for the government to show that the beneficiaries meet three conditions for the reservation.
The government was required to demonstrate the backwardness of the beneficiaries through quantifiable data, prove SCs/STs are inadequately represented in the relevant public employment and also that the reservation will maintain the overall efficiency of administration.
This made it more difficult for the government to grant reservation in promotion.
The court had also suggested excluding the ‘creamy layer’ within SCs/STs from the benefits of promotion.
Furthermore, the court noted that articles 16(4)(A) and 16 (4)(B) are enabling provisions and there is no automatic right to reservation in promotion for SCs/STs. It also reiterated the ceiling of 50 per cent.
Subsequently, the top court delivered many judgments, reinforcing the ruling in Nagaraj case that consequential seniority cannot be introduced unless the government proves the beneficiary fulfills the three conditions set by the 2006 verdict.
Jarnail Singh case
Aggrieved with the Nagaraj judgment, several states moved the Supreme Court claiming that it had made granting reservation in promotions “unjustly difficult”. They urged the court to review the three conditions outlined in the verdict.
It was contended that the conditions were contrary to the Indra Sawhney judgment and that the concept of ‘creamy layer’ was not applicable to SCs/STs.
The petitioners argued that the Nagaraj judgment misinterpreted the Indra Sawhney ruling, which only dealt with the constitutionality of 27 per cent reservation granted to OBCs and exclusion of ‘creamy layer’ of the OBCs, but not SCs/STs.
In September 2018, a five-judge bench unanimously held that the Nagaraj judgment did not need reconsideration or reference to a larger bench in the Jarnail Singh verdict. It also, significantly, upheld the applicability of ‘creamy layer’ to affluent SCs and STs.
The bench, however, modified the direction in Nagaraj case that required the government to show quantifiable data to prove backwardness, but retained the condition to prove that there was no adequate representation of SCs/STs in the relevant public employment.
Almost a year later, the central government sought a review of the Jarnail Singh judgment and its reference to a seven-judge bench on the limited issue of ‘creamy layer’. The government maintained that SC/ST communities continue to bear the oppression of centuries-old discrimination.
However, the court is yet to announce its decision on this request.
B.K. Pavitra judgment
In May 2019, the Supreme Court upheld the Karnataka Reservation Act, enacted in 2018, which introduced consequential seniority for SCs/STs in state public employment.
According to the top court, the law conformed with the Nagaraj and Jarnail Singh judgments. The verdict further introduced an inclusive definition of ‘administrative efficiency’.
After examining the definition under Article 335, the bench held in the B.K. Pavitra vs Union Of India case a “meritorious candidate is not just one who is more talented, but on whose appointment fulfill the constitutional goal of uplifting SC/STs”.
10% reservation for economically backward
In 2019, articles 15 and 16 were amended once again to empower the government to provide reservation on the basis of economic backwardness.
The Constitution (103rd Amendment) Act of 2019 provides for 10 per cent reservation in government jobs and educational institutions for the “economically backward” in the unreserved category.
A challenge was mounted against it, which, in August 2020, was referred to a Constitution bench that is yet to be constituted. However, there is no stay on the operation of the quota.
Broadly, there are two grounds on which the amendment is being challenged.
First, it violates the Basic Structure of the Constitution because it promises special benefit on the basis of economic status, while the Constitution guarantees this protection only to socially disadvantaged groups.
Secondly, the amendment does not conform to the 50 per cent cap on reservation, enumerated by the Indra Sawhney ruling.
93rd constitutional amendment and Ashok Thakur judgment
These two developments paved the way for reservation of OBCs, SCs and STs in educational institutions.
Introduced in 2005, the 93rd amendment added Clause 5 to Article 15 to allow the government to make any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or SCs/STs for admission to educational institutions, including private — both aided and unaided — except minority institutions.
Subsequently, in 2007, the central government enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, which provides for 15 per cent reservation of SC students, 7.5 per cent for ST students and 27 per cent for OBC students in certain educational institutions that are established, maintained or aided by the central Government.
In 2008, a Constitution bench of the top court upheld the amendment as well as the 2007 law in the Ashok Thakur judgment.
It, however, stressed on the exclusion of the ‘creamy layer’ from the reservation and directed the concerned OBC commission to effectively identify the backward classes to maintain constitutional balance.
(With inputs from Poojasri Ganesan)
(Edited by Rachel John)