What is meant by reservation or affirmative action?
In simple terms, reservation in India is all about reserving access to seats in the government jobs, educational institutions, and even legislatures to certain sections of the population.
Also known as affirmative action, the reservation can also be seen as positive discrimination. Reservation in India is a government policy, backed by the Indian Constitution (by means of various amendments).

The purpose of reservation in India
The two main aims to provide reservation as per the Constitution of India are:
Advancement of Scheduled Castes (SC) and the Scheduled Tribes (ST) OR any socially and educationally backward classes of citizens (Eg: OBC) OR economically weaker sections (EWS) - Article 15 (4), Article 15 (5), and Article 15 (6),
Adequate representation of any backward class of citizens OR economically weaker sections (EWS) in the services under the State. - Article 16 (4) and Article 16 (6).

The extent of Reservation in India
In India, reservation is provided in:
Government Educational Institutions like IITs, IIMs etc as per Article 15 - (4), (5), and (6)
Government Jobs like IAS, IPS etc as per Article 16 - (4) and (6)
Legislatures (Parliament, and State Legislature) - as per Article 334
Before 2019, the reservation was provided mainly on the basis of social and educational backwardness (caste). However, after the 103rd constitutional amendment in 2019, economic backwardness is also considered.

Apart from the reservation quota, additional relaxations like upper-age relaxations, additional attempts, and lower cut-off marks are also provided for various reservation categories.

A vacancy reserved for SCs or STs or OBCs cannot be filled by a candidate other than an SC or ST or OBC candidate, as the case may be.

As seen from the above table, about 60% of seats are reserved in India - for various sections like ST, SC, OBC, and EWS - with respect to Government jobs and Higher Education Institutions. 3% of seats are also reserved for differently-able persons across all categories.

This also means that only 40% of seats are available under merit. In the merit seats, not only the general category candidates but all other categories like SC, ST, OBC, and EWS can also compete.

SC/ST Reservation
The objective of providing reservations to the Scheduled Castes(SCs), Scheduled Tribes (STs) in services is not only to give jobs to some persons belonging to these communities. It basically aims at empowering them and ensuring their participation in the decision-making process of the State.

Besides, the state is also keen to end practices such as untouchability.

Scheduled Castes (SC) are given 15% quota in jobs/higher educational institutions while Schedule Tribes (ST) are given 7.5% quota in jobs/higher educational institutions.
Reservation is provided not only with respect to direct recruitment but also with respect to promotions for SC/ST category Article 16(4A)

There is no concept of 'creamy layer' with respect to SC/ST reservation. This means that irrespective of the income status or the government posts held by the parents, children of SC/ST parents will get SC/ST Reservation.

OBC Reservation
Reservation for Other Backwards Classes (OBC) was introduced based on the Mandal Commission Report (1991). The quota for OBCs is 27% in government jobs and higher educational institutions.

However, there is a concept of 'creamy layer' with respect to the OBC reservation. Only those from OBC who comes under Non-Creamy Layer would get OBC reservation.
The creamy layer concept brings income and social status as parameters to exclude some of the privileged members of OBC from the extent of reservation. This concept also keeps a check to ensure that the benefits of reservation do not get extended to subsequent generations.

EWS Reservation
The Central Government of India recently introduced EWS Reservation. 10% quota is provided for the Economically Weaker Sections (EWS) among General Category candidates in government jobs and educational institutions. This is done by adding clauses for the same in the Indian Constitution (103rd Constitution Amendment Act, 2019).

Should India need reservation (now)?
It's the duty of the government to provide equality of status and opportunity in India. Reservation is one of the tools against social oppression and injustice against certain classes. Otherwise known as affirmative action, reservation helps in uplifting backward classes. However, reservation is just one of the methods for social upliftment. There are many other methods like providing scholarships, funds, coachings, and other welfare schemes.

The way the reservation is implemented and executed in India is largely governed by vote-bank politics. Indian Constitution allowed reservation only for socially and educationally backward classes. However, in India, it became caste-based reservation instead of class-based reservation.

50% Cap on Caste-Based Reservations
In Indra Sawhney vs Union Of India, 1992, the Supreme Court of India capped caste-based reservation, ruling that "no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality".

"Since this Court has consistently held that the reservation under Articles 15(4) and 16(4) should not exceed 50% and the States and the Union have by and large accepted this as correct it should be held as constitutional prohibition and any reservation beyond 50% would liable to be struck down."While introducing the bill for Economic Reservation in 2019, Arun Jaitley (Finance Minister) contended that the 50% cap on reservations imposed by the Supreme Court was only for caste-based reservations, and the Economically Weaker Section (EWS) reservation won't be impacted by it.

Economy cannot be the basis to provide reservation: SC
As per Article 16(4), one of the main purposes of reservation is to provide adequate representation of all classes (castes) in government services. Economic Reservation introduced by Article 16(6) is actually against this concept - as it does not take into consideration the caste-based representation.
Moreover, the reservation is not a poverty alleviation scheme.
Supreme Court had also ruled that economic status cannot be the sole criterion for reservation.
Many states had tried to implement Economic Reservation, however, they were subsequently quashed by Courts.
Introducing EWS bill in 2019, Union Social Justice and Empowerment Minister Thaawarchand Gehlot said the similar state laws for EWS quota were quashed by Courts because there was no provision for economic reservation in the Constitution before. Now, the Law will not be struck down by the Supreme Court if challenged as it has been brought by making required provisions in the Constitution.

Mandal Commission

• In exercise of the powers conferred by Article 340 of the Constitution, the President appointed a backward class commission in December 1978 under the chairmanship of B. P. Mandal
• The commission was formed to determine the criteria for defining India's "socially and educationally backward classes" and to recommend steps to be taken for the advancement of those classes.
• The Mandal Commission concluded that India's population consisted of approximately 52 percent OBCs, therefore 27% government jobs should be reserved for them.
• The commission has developed eleven indicators of social, educational, and economic backwardness.
• Apart from identifying backward classes among Hindus, the Commission has also identified backward classes among non-Hindus (e.g., Muslims, Sikhs, Christians, and Buddhists.
• It has generated an all-India other backward classes (OBC) list of 3,743 castes and a more underprivileged "depressed backward classes" list of 2,108 castes.

In the Indra Sawhney Case of 1992, the Supreme Court while upholding the 27 percent quota for backward classes,struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.

• Supreme Court in the same case also upheld the principle that the combined reservation beneficiaries should not exceed 50 percent of India's population
• The concept of 'creamy layer' also gained currency through this judgment and provision that reservation for backward classes should be confined to initial appointments only and not extend to promotions.
• Recently, the Constitutional (103rd Amendment) Act of 2019 has provided 10% reservation in government jobs and educational institutions for the "economically backward" in the unreserved category.
• The Act amends Articles 15 and 16 of the Constitution by adding clauses empowering the government to provide reservation on the basis of economic backwardness.
• This 10% economic reservation is over and above the 50% reservation cap.

Constitutional Provisions Governing Reservation in India:

1. Part XVI deals with reservation of SC and ST in Central and State legislatures.
2. Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST.
3. The Constitution was amended by the Constitution (77th Amendment) Act, 1995 and a new clause (4A) was inserted in Article 16 to enable the government to provide reservation in promotion.
4. Later, clause (4A) was modified by the Constitution (85th Amendment) Act, 2001 to provide consequential seniority to SC and ST candidates promoted by giving reservation.
5. Constitutional 81st Amendment Act, 2000 inserted Article 16 (4 B) which enables the state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year.
6. Article 330 and 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively
7. Article 243D provides reservation of seats for SCs and STs in every Panchayat.
8. Article 233T provides reservation of seats for SCs and STs in every Municipality.
9. Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.

Judicial Review

• The State of Madras v. Smt.Champakam Dorairajan (1951) case was the first major verdict of the Supreme Court on the issue of Reservation.The case led to the First amendment in the constitution.
• The Supreme Court in the case pointed out that while in the case of employment under the State, Article 16(4) provides for reservations in favour of backward class of citizens, no such provision was made in Article 15.
• Pursuant to the Supreme Court's order in the case the Parliament amended Article 15 by inserting Clause (4).
• In Indra Sawhney v. Union of India (1992) case the court examined the scope and extent of Article 16(4).
• The Court has said that the creamy layer of OBCs should be excluded from the list of beneficiaries of reservation, there should not be reservation in promotions; and total reserved quota should not exceed 50%.
• The Parliament responded by enacting 77th Constitutional Amendment Act which introduced Article 16(4A).
• The article confers power on the state to reserve seats in favour of SC and ST in promotions in Public Services if the communities are not adequately represented in public employment.
• The Supreme Court in M. Nagaraj v. Union Of India 2006 case while upholding the constitutional validity of Art 16(4A) held that any such reservation policy in order to be constitutionally valid shall satisfy the following three constitutional requirements:
  
  • The SC and ST community should be socially and educationally backward
  • The SC and ST communities are not adequately represented in Public employment.
  • Such reservation policy shall not affect the overall efficiency in the administration.
  • In Jarnail Singh vs Lachhmi Narain Gupta case of 2018, Supreme Court holds that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes.
• The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in promotion to SC/ST individuals who belong to the creamy layer of their community.
• In May 2019 the Supreme Court upheld the Karnataka law that allows reservations in promotions for SCs and STs with consequential seniority.

Case laws regarding article 15 and article 16:
State of Madras v. Smt. Champakan Dorairajan [1951] S.C.R. 525
In the case by virtue of certain orders issued prior to coming into force of the Constitution, popularly known as 'Communal G.O.' seats were apportioned in the Medical and Engineering Colleges in the State of Madras.

Even after the advent of the Constitution, the G.O. was being acted upon which was challenged by the Respondent as violative of the fundamental rights guaranteed to her by Articles 15(1) and 29(2) of the Constitution of India.

A Special Bench of Seven Judges heard the matter and came to the unanimous conclusion that the allocation of seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch as the refusal to admit the respondent notwithstanding her higher marks, was based only on the ground of caste.

The Supreme Court in the case pointed out that while in the case of employment under the State, Article 16(4) provides for reservations in favour of backward class of citizens, no such provision was made in Article 15.

Pursuant to Supreme Court's order in the case the Parliament intervened amended Article 15 by inserting Clause (4), which reads:
Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]

R. Balaji and Ors. v. State of Mysore [1963] Suppl. 1 S.C.R. 439
In this case, in the State of Karnataka, reservations were in force since a few decades prior to the advent of the Constitution and were being continued even thereafter. The State of Mysore issued an order under Article 15(4) of the Constitution declaring all the communities except the Brahmin community as socially and educationally backward and reserving a total of 75 per cent seats in Educational Institutions in favour of SEBCs and SCs/STs.

Such orders were being issued every year, with minor variation in the percentage of reservations. Later a similar order was issued wherein 68 per cent of the seats in all Engineering and Medical Colleges and Technical Institutions in the State were reserved in the favour of the SEBCs, SCs and STs. SEBCs were again divided into two categories-backward classes and more backward classes.

Thus, the validity of the impugned order was questioned under Article 32 of the Constitution.

The Five-Judge Bench of the Supreme Court while striking down the said order, enunciated the following principles:

1. Article 15(4) is a proviso or an exception to Clause (1) of Article 15 and to Clause (2) of Article 29
2. For the purpose of Article 15(4), backwardness must be both social and educational. Though caste in relation to Hindus may be a relevant factor to consider, in determining the social backwardness of a class of citizens, it cannot be made the sole and dominant test. Christians, Jains and Muslims do not believe in caste system; the test of caste cannot be applied to them. Inasmuch as identification of all backward classes under the impugned order has been made solely on the basis of caste, it is bad.
3. The reservation made under Article 15(4) should be reasonable. It should not be such as to defeat or nullify the main Rule of equality contained in Clause (1). While it is not possible to predicate the exact permissible percentage of reservations, it can be stated in a general and broad way that they should be less than 50 per cent.
4. A provision under Article 15(4) need not be in the form of legislation; it can be made by an executive order.
5. The further categorization of backward classes into backward and more backward is not warranted by Article 15(4).

Indra Sawhney v. Union of India (AIR 1993 SC 477)
This case is also commonly referred to as the Mandal Commission Case- In this case, the Nine-Judge Bench of the Supreme Court enumerated the following essential points pertaining to reservation in Government employment under Article 16(4) of the Constitution:

• That Article 16(4) is exhaustive of the provision that can be made in favour of backward classes in matters of employment.
• That any reservation in excess of 50% for 'backward classes' will not be violative of Articles 14 and/or 16 of the Constitution. But at the same time, such reservations made either under Article 16(4)or under Article 16(1) and (4) cannot be extended to the totality of 100%.
• No Reservation can be made under Article 16(4) for classes other than backward classes. But under Article 16(1), reservation can be made for classes, not covered byArticle 16(4).
• The expression, 'backward class of citizens' occurring in Article 16(4)is neither defined nor explained in the Constitution. However, the backward class or classes can certainly be identified in Hindu society with reference to castes along with other criteria such as traditional occupation, poverty, place of residence, lack of education etc. and in communities where caste is not recognised by the above recognised and accepted criteria except caste criterion.
• In the process of identification of backward class of citizens and under Article 16(4)among Hindus, caste is a primary criterion or a dominant factor though it is not the sole criterion.
  
  
• Any provision under Article 16(4)is not necessarily to be made by the Parliament or Legislature. Such a provision could also be made by an Executive order.
  
  
• The power conferred on the State under Article 16(4) is one coupled with a duty and, therefore, the State has to exercise that power for the benefit of all those, namely, backward class for whom it is intended.
  
  
• The provision for reservation of appointments or posts in favour of any backward class of citizens is a matter of policy of the Government, of course subject to the constitutional parameters and well settled principle of judicial review.
• No maximum ceiling of reservation can be fixed under Article 16(4) of the Constitution for reservation of appointments or posts in favour of any backward class of citizens "in the Services under the State". The decisions fixing the percentage of reservation only up to the maximum of 50% are unsustainable.

In the case, the Apex Court also recommended the Government to create a permanent machinery either by way of a Commission or a Committee within a reasonable time for examining the requests of inclusion or exclusion of any caste, community or group of persons on the advice of such Commission or Committee, as the case may be, and also for examining the exclusion of any pseudo community if smuggled into the list of OBCs.

M. Nagaraj v. Union of India (2006) 8 SCC 212
Some key observations that were made by Five-Judge Bench of the Supreme Court in context of extent of reservation are as under:

1. That the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16would collapse.
    
2. That with respect to the "extent of reservation" the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335.
    
3. That even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

Subject to above, the Bench upheld the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.

I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors. (AIR 2007 SC 861)
Some of the points concluded by the Nine-Judge Bench of the Supreme Court in the case are as under:

• A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.
   
• The majority judgment in Kesavananda Bharati's case read with Indira Gandhi's case, requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.
   
• All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19 and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.
   
• Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14and Article 19 by application of the "rights test" and the "essence of the right" test taking the synoptic view of the Articles in Part III as held in Indira Gandhi's case. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such a law(s) will not get the protection of the Ninth Schedule.
   
• If the validity of any Ninth Schedule law has already been upheld by this 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 24th 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 14and Article 19 and the principles underlying thereunder.
   
• Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge. We answer the reference in the above terms and direct that the petitions/appeals be now placed for hearing before a Three Judge Bench for decision in accordance with the principles laid down herein.

In 2008, a constitution bench of the Supreme Court of India (the Supreme Court) in Ashoka Kumar Thakur v. Union of India conclusively adjudicated on the abovementioned issues and held the Constitution (Ninety-third Amendment) Act, 2005 as well as the enactment Act 5 of 2007 to be constitutional, but yet the issue is far from settled. New writ petitions are being filed in various High courts across the country and various High Courts have been interpreting the said judgment of the Supreme Court variously.

In P. Ranjendran v. State of Madras it was held that though 'caste' cannot be the sole criteria, it should not be forgotten that caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such caste.

In S.V. Balaram v. State of Andhra Pradesh, a list of backward class based solely on caste with material proving that those castes were socially and educationally backward, was held to be valid.

But in State of Andhra Pradesh v. P.Sagar, a list of backward class based solely on caste without any material showing that the entire caste is backward, was quashed as violative of Article 15(4).

In K.S. Jayasree v. State of Kerela, a person belonging to the backward class but family income exceeding Rs. 10000, was denied the benefit of reservation as it was held that caste could not be treated as the sole or dominant test for the purpose and poverty too had too be taken into account. It was held that neither poverty nor caste can be sole factors for determining backwardness. Caste and poverty are both relevant factors for determination of backwardness.

State of Kerela v. N.M. Thomas, wherein he observed that 'benefits of the reservation shall be snatched away by the top creamy layer of the backward class, thus leaving the weakest among the weak and leaving the fortunate layers to consume the whole cake'.

This term was cited again by Justice Krishna Iyer in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India and by Justice Chinnapa Reddy in K.C. Vasanth Kumar v. State of Karnatakaraising similar concerns. The roots of this concept can however be traced back to the case of K.S. Jayashree v. State of Kerela wherein the people belonging to backward class, but whose family income exceeds Rs. 10000, were denied the benefit of reservation.

Ajit Singh v. State of Punjab (1999, five-judge bench)
This case related to reservation in promotions and whether reserved candidates, who get promotion would be entitled to claim seniority over general candidates who get promoted at a later point in time.

The court noted with the approval the law laid down in its previous judgments in MR Balaji v. State of Mysore (1963) and CA Rajendran v. Union of India (1967) and ruled that there is no duty on the government to provide reservations.

"In view of the overwhelming authority right from 1963, we hold that both Articles 16(4) and 16(4A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those Articles so warranted," the court said.

CA Rajendran v. Union of India (1967, five-judge bench)
The court dealt with the Centre's decision that there would be no reservation for the SC and STs in appointments made by promotions to Class I and II services in the railways as these required a higher degree of efficiency and responsibility.

However, such reservations were to continue in certain grades and services in Class III and Class IV. The Centre's had said there is no constitutional compulsion to make reservations for the SCs and STs in posts filled through promotion and the question whether reservation should be continued or withdrawn was entirely a matter of public policy.
The Supreme Court agreed with the Centre holding that Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the government to make reservation for the SCs and STs, either at the initial stage of recruitment or at the stage of promotion.

Web References:

• https://www.business-standard.com/article/opinion/india-s-ever-increasing-reservations-121032201479_1.html
• https://indiankanoon.org/
• https://www.drishtiias.com/to-the-points/Paper2/reservation-in-india
• https://www.yourarticlelibrary.com/essay/reservation-system-in-india-concept-arguments-and-conclusions/24973
• https://www.clearias.com/reservation-in-india/
  

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