Indian Government now Indian law provides for a quota system whereby a percentage of posts are reserved in employment in Government and in the public sector units, and in all public and private educational institutions, except in the religious/ linguistic minority educational institutions, in order to mitigate backwardness of the socially and educationally backward communities and the Scheduled Castes and Tribes who do not have adequate representation in these services and institutions. The reservation policy is also extended to the Scheduled Castes and Scheduled Tribes for representation in the Parliament of India. The central government of India reserves 27% of higher education, and individual states may legislate further reservations. Reservation cannot be exceeded 50%, as per the rulings given by the supreme court, but certain Indian states like Rajasthan have proposed a 68 % reservation which includes a 14% reservation for forward castes.
Reservations are intended to increase the social diversity in campuses and workplaces by lowering the entry criteria for certain identifiable groups that are grossly under-represented in proportion to their numbers in the general population. Caste is the most used criteria to identify under-represented groups. However there are other identifiable criteria for under-representation—gender (women are under represented), state of domicile (North Eastern States, as Bihar and Uttar Pradesh are under-represented), rural people, etc. -- as revealed by the Government of India sponsored National Family Health and National Sample surveys.
The underlying theory is that the under-representation of the identifiable groups is a legacy of the Indian caste system. 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, due to the caste system, SCs and the STs were historically oppressed and denied respect and equal opportunity in Indian society and were thus under-represented in nation-building activities. The Constitution laid down 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 succeeding governments.
Later, reservations were introduced for other sections as well. The Supreme Court ruling that reservations cannot exceed 50% (which it judged would violate equal access guaranteed by the Constitution) has put a cap on reservations. However, there are state laws that exceed this 50% limit and these are under litigation in the Supreme Court. For example, the caste-based reservation fraction stands at 69% and is applicable to about 87% of the population in the state of Tamil Nadu (see section on Tamil Nadu below).
Reservations in favour of Backward Classes (BCs) were introduced long before Independence in a large area, comprising the Presidency areas and the Princely States south of the Vindhyas. Chatrapati Sahuji Maharaj, Maharaja of Kolhapur in Maharashtra introduced reservation in favour of backward classes as early as 1902 to eradicate poverty from amongst them and to give them their due share in the State administration. The notification of 1902 created 50% reservation in services for backward classes/communities in the State of Kolhapur. This notification is the first Government Order providing for reservation for the welfare of depressed classes in India.
The concept of untouchability was not practiced uniformly throughout the country, the identification of oppressed classes is not an easy task. What is more, the practice of segregation and untouchability prevailed more in the southern parts of India and was more diffused in Northern India. An additional complexity is that there are certain castes/ communities, which are considered as untouchables in one province but not in other provinces. Some castes, based on traditional occupations, find place in both Hindu and non-Hindu communities. Listing of castes has had a long history, starting from the earliest period of our history with Manu. Medieval chronicles contain description of communities located in various parts of the country. During the British colonial period, listings were undertaken after 1806, on an extensive scale. The process gathered momentum in course of the censuses from 1881 to 1931.
The Backward Classes movement also first gathered momentum in South India particularly in Tamil Nadu. The continuous efforts of some of the social reformers of the country viz. Rettamalai srinivasa Paraiyar, Ayothidas Pandithar www.paraiyar.webs.com, Jyotiba Phule, Babasaheb Ambedkar, Chhatrapati Sahu ji Maharaj and others, completely demolished the wall created by the upper classes between them and the untouchables.
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 practised, 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 class or occupation". "Varna" in Varnasrama (Varna + Ashrama) is not to be confused with the same word meaning 'colour'. The practice of caste in India followed this rule.
Indian Judiciary has pronounced some Judgments upholding reservations and some judgments for fine tuning its implementations. Lot of judgments regarding reservations have been modified subsequently by Indian parliament through constitutional amendments. Some judgments of Indian judiciary has been flouted by state and central Governments. Given below are the major judgments given by Indian courts and its implementation status:
|1951||Court has pronounced that caste based reservations as per Communal Award violates Article 15(1). (State of Madras Vs. Smt. Champakam Dorairanjan AIR 1951 SC 226)||1st constitutional amendment (Art. 15 (4)) introduced to make judgement invalid.|
|1963||Court has put 50% cap on reservations in M R Balaji v Mysore AIR 1963 SC 649||Almost all states except Tamil Nadu (69%, Under 9th schedule) and Rajasthan (68% quota including 14% for forward castes, post gujjar violence 2008) has not exceeded 50% limit. Tamil Nadu exceeded limit in 1980. Andhra Pradesh tried to exceed limit in 2005 which was again stalled by high court.|
|1992||Supreme court in Indira Sawhney & Ors v. Union of India. AIR 1993 SC 477 : 1992 Supp (3)SCC 217 upheld Implementation of separate reservation for other backward classes in central government jobs.||Judgement implemented|
|Ordered to exclude Creamy layer of other backward classes from enjoying reservation facilities.||All states except Tamil Nadu implemented. Recent Reservation bill for providing reservations to other backward classes in educational institutions also has not excluded Creamy layer in some states. (Still under the consideration of Standing committee).|
|Ordered to restrict reservations within 50% limit.||All states except Tamil Nadu followed.|
|Declared separate reservations for economically poor among forward castes as invalid.||Judgement implemented|
|In General Manager, S. Rly. v. Rangachari AIR 1962 SC 36, State of Punjab v. Hiralal 1970(3) SCC 567, Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981) 1 SCC 246 it was held that Reservation of appointments or posts under Article 16(4) included promotions. This was overruled in Indira Sawhney & Ors v. Union of India. AIR 1993 SC 477 : 1992 Supp (3) SCC 217 and held that Reservations cannot be applied in promotions. Union of India Vs Varpal Singh AIR 1996 SC 448, Ajitsingh Januja & Ors Vs State of Punjab AIR 1996 SC 1189, Ajitsingh Januja & Ors Vs State of Punjab & Ors AIR 1999 SC 3471, M.G. Badappanavar Vs State of Karnataka 2001 (2) SCC 666.||Ashok Kumar Gupta: Vidyasagar Gupta Vs State of Uttar Pradesh. 1997 (5) SCC 201 77th Constitution amendment (Art 16(4 A) & (16 4B) introduced to make judgement as invalid. M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71 held the amendments constitutional. 1. Art. 16(4)(A) and 16(4)(B) flow from Art. 16(4). Those constitutional amendments do not alter structure of Art. 16(4). 2. Backwardness and inadequacy of representation are the controlling/compelling reasons for the state to provide reservations keeping in mind the overall efficiencies of state administration. 3. Government has to apply cadre strength as a unit in the operation of the roaster in order to ascertain whether a given class/group is adequately represented in the service. Roaster has to be post specific with inbuilt concept of replacement and not vacancy based. 4. If any authority thinks that for ensuring adequate representation of backward class or category, it is necessary to provide for direct recruitment therein, it shall be open to do so. 5. Backlog vacancies to be treated as a distinct group and are excluded from the ceiling limit of 50%. 6. If a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class and reserved category candidates are entitled to compete for the general category post. 7. The reserved candidates are entitled to compete with the general candidates for promotion to the general post in their own right. On their selection, they are to be adjusted in the general post as per the roster and the reserved candidates should be adjusted in the points earmarked in the roster to the reserved candidates. 8. Each post gets marked for the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category alone (replacement theory). R K Sabharwal Vs St of Punjab AIR 1995 SC 1371 : (1995) 2 SCC 745. The operation of a roster, for filling the cadre-strength, by itself ensures that the reservation remains within the 50% limit.|
|In Union of India Vs Varpal Singh AIR 1996 SC 448 and Ajitsingh Januja & Ors Vs State of Punjab AIR 1996 SC 1189 it was held that a roster point promotees getting the benefit of accelerated promotion would not get consequential seniority and the seniority between the reserved category candidates and general candidates in promoted category shall be governed by their panel position. This was overruled in Jagdish Lal and others v. State of Haryana and Others (1997) 6 SCC 538 it held that the date of continuous officiation has to be taken into account and if so, the roster- point promotees were entitled to the benefit of continuous officiation. Ajitsingh Januja & Ors Vs State of Punjab & Ors AIR 1999 SC 3471 overruled Jagdish Lal M G Badappanvar Vs St of Karnataka 2001(2) SCC 666 : AIR 2001 SC 260 held that roster promotions were meant only for the limited purpose of due representation of backward classes at various levels of service and therefore, such roster promotions did not confer consequential seniority to the roster point promotee.||By 85th Constitution amended Consequential Seniority was inserted in Art 16 (4)(A) to make the judgement invalid. M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71 held the amendments constitutional. Jagdish Lal and others v. State of Haryana and Others (1997) 6 SCC 538 it held that the date of continuous officiation has to be taken into account and if so, the roster- point promotees were entitled to the benefit of continuous officiation.|
|S. Vinodkumar Vs. Union of India 1996 6 SCC 580 held that relaxation of qualifying marks and standard of evaluation in matters of reservation in promotion was not permissible||By the Constitution (82nd) Amendment Act a proviso was inserted at the end of Art 335. M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71 held the amendments constitutional.|
|2010||Suraj Bhan Meena Vs. State of Rajasthan. Held that, in view of M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71, if the state wants to frame rules with regard to reservation in promotions and consequential seniority it has to satisfy itself with quantifiable data that is there is backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the state government the rules in promotions and consequential seniority cannot be introduced. Reservation in promotion is dependent on the inadequacy of representation of members of SC, ST and backward classes and subject to the condition of ascertaining whether such reservation was at all required. As no exercise was undertaken to acquire quantifiable data regarding in adequacy of representation. The Rajasthan High Court rightly quashed the notifications providing for consequential seniority and promotion to the members of SC and ST communities and the same does not call for any interference. S. Balakrishnan Vs. S. Chandrasekar (28/2/2005) The Government of Tamil Nadu Vs. Registration Department SC/ST (9/12/2005) The Madras High Court has held that reservation in promotion is available only to SC and ST and not to backward class (OBC) and most backward class (MBC) Sudam Shankar Baviskar Vs. Edu. Off. (Sec), Z.P. Jalgaon 2007 (2) MhLJ 802. Held that consequential seniority is not available to VJNT.|
|2010||UOI v/s. S. Kalugasalamoorthy Held that when a person is selected on the basis of his own seniority, the scope of considering and counting him against reserved quota does not arise.|
|1994||Supreme court advised Tamil Nadu to follow 50% limit||Tamil Nadu Reservations put under 9th Schedule of the constitution. I.R. Coelho (Dead) by LRS. Vs. State of T.N. 2007 (2) SCC 1 : 2007 AIR(SC) 861 Held, Ninth Schedule law has already been upheld by the court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24 April 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder. Action taken and the transctions finalized as a result of the impugned Acts shall not be open to challenge.|
|2005||In Unni Krishnan, J.P. & Ors. Vs. State of Andhra Pradesh & Ors. (1993 (1) SCC 645), it was held that right to establish educational institutions can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). This was overruled in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, P.A.Inamdar v. State of Maharashtra 2005 AIR(SC) 3226 Supreme court ruled that reservations cannot be enforced on Private Unaided educational institutions.||93rd constitutional amendment introduced Art 15(5). Ashoka Kumar Thakur vs. Union of India 1. The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure" of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is left open to be decided in an appropriate case. 2."Creamy layer" principle is one of the parameters to identify backward classes. Therefore, principally, the "Creamy layer" principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves. 3. Preferably there should be a review after ten years to take note of the change of circumstances. 4. A mere graduation (not technical graduation) or professional deemed to be educationally forward. 5. Principle of exclusion of Creamy layer applicable to OBC's. 6. The Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes (OBCs) to balance reservation with other societal interests and to maintain standards of excellence. This would ensure quality and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories. 7. So far as determination of backward classes is concerned, a Notification should be issued by the Union of India. This can be done only after exclusion of the creamy layer for which necessary data must be obtained by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union Territories. There has to be proper identification of Other Backward Classes (OBCs.). For identifying backward classes, the Commission set up pursuant to the directions of this Court in Indra Sawhney 1 has to work more effectively and not merely decide applications for inclusion or exclusion of castes. 8. The Parliament should fix a deadline by which time free and compulsory education will have reached every child. This must be done within six months, as the right to free and compulsory education is perhaps the most important of all the fundamental rights (Art.21 A). For without education, it becomes extremely difficult to exercise other fundamental rights. 9. If material is shown to the Central Government that the Institution deserves to be included in the Schedule (institutes which are excluded from reservations) of The Central Educational Institutions (Reservation in Admission) Act, 2006 (No. 5 of 2007), the Central Government must take an appropriate decision on the basis of materials placed and on examining the concerned issues as to whether Institution deserves to be included in the Schedule of the said act as provided in Sec 4 of the said act. 10. Held that the determination of SEBCs is done not solely based on caste and hence, the identification of SEBCs is not violative of Article 15(1) of the Constitution.|
Seats in educational institutions and jobs are reserved based on a variety of criteria. The quota system sets aside a proportion of all possible positions for members of a specific group. Those not belonging to the designated communities can compete only for the remaining positions, while members of the designated communities can compete for all positions (reserved and open). For example, when 2 out of 10 clerical positions in railways are reserved for ex-servicemen, those who have served in the Army can compete both in the General Category as well as in the specific quota.