Reservations as a policy of affirmative action is perhaps the most politically controversial, socially polarizing aspect of constitutional scheme and public policy measure in contemporary Indian political history. At a time when scars of historical injustice still haunt our society, inequalities galore, deprivation and skill deficit is rampant and opportunities are skewed, the reservations however, controversial still remains the relevant theme . However, much water has flown since the adoption of the policy and therefore as assessment of the same is of a paramount importance.

Indian jurisprudence gives as an exciting reading of the judicial discourse that has gone into the theme in question. Certain aspects can be delineated for the purpose of arriving at a clarity on reservations and social justice.

1. Does modern India still need reservations? Does the right to affirmative action go contrary to the principle of equality enshrined in the constitution?

2. What should be the basis for extending these positive discriminations? Does the caste outlived its utility as the basis for reservation or still it holds relevant.

3. How should we balance between the competing constitutional provisions and objectives. Should this act of balancing need to impose a quantitative limit on the extent of quotas? Are there any exceptions to this ?

4. Should the policy on reservations remain static even after seven decades of its implementation? If not, what changes are needed to realize that its core objectives are effectively fulfilled.

Constitution, reservations and Economic Criteria

The law enacting the reservations for economically weaker sections has to pass the judicial test.

The constitutional amendment faces three specific judicial vulnerabilities.

Firstly, the Apex court in Indira Sawhney case said, solely the economic criteria does not fit into the 'doctrine of reasonable' classification for providing reservations. The Supreme Court in this historical verdict considered as the Magna Carta of the reservations jurisprudence clearly stated in Para 689 ,"... any reservation or affirmative action on economic criteria or wealth discrimination cannot be upheld under doctrine of reasonable classification. Reservation for backward class seeks to achieve the social purpose of sharing in services which had been monopolised by few of the forward classes. To bridge the gap, thus, created the affirmative action's have been upheld as the social and educational difference between the two classes furnished reasonable basis for classification. Same cannot be said for rich and poor. A classification based on economic conditions for purposes of Article 16(1) would be violative of equality doctrine". Thus the apex court has drawn a clear distinction between social and economic backwardness. Thus, the reading of Indian jurisprudence gives an impression that the highest court of the land has been stating that economic backwardness can be a ground for exclusion, but not for inclusion as far as affirmative action like reservations is concerned.

Secondly, the apex court in the same verdict observed that reservations being an extreme form of protective affirmative action, should be within the minority and quotas in any manner should be within fifty percent. This principle of balancing equality has been upheld in several of the judgments during the course of five decades of India's jurisprudence. The Supreme Court in Indira Sawhney said that the principle of balancing equality ordains reservation, of any manner, not to exceed 50%. Still it is being argued that the 50 percent limit enforced by the apex court is valid only to caste based reservations . The Supreme Court in MR Balaji, Indira Sawhney , Ram Singh etc., has been stating that the 50 percent limit is not a quantitative restriction but integral to the concept of right to equality which again form the basic structure of the constitution. Even the Parliament cannot amend the basic structure as per the Kesavananda Bharati case.

Thirdly, the reservations under article 16(4) of the constitution should qualify the test of not 'adequately represented' .

The exercise of power to reserve is coupled with duty to determine backward class of citizens and if they were adequately represented. If the Government failed to discharge its duty then the exercise of power stands vitiated. This is what the Supreme Court stated in the Indira Sawhney case (Para 695 ). Thus it is a constitutional obligation on the part of the State to first ascertain that a group of people in this case what the new law calls economically weaker sections are not adequately represented in educational and employment before reserving 10 percent seats.

Economic criteria for quotas: Implementation challenges

The Centre's decision to introduce ten percent reservation for economically backward sections of society is fraught with several implementation challenges too, which may lead to its misuse and abuse.

Income limit for availing the quota would be around Rs eight lakh per year. A family with a monthly income of Rs 65,000 to Rs 70,000 cannot be construed as poor and economically weak by Indian standards.

Considering that over 90 percent of the Indian economy is informal and unorganised, an income-based reservation policy is highly vulnerable to gross misuse, at the cost of those who are actually marginalised.

Barring salaried people in the government and corporate sector, the rich and upper middle-class sections of society can easily appropriate these quotas, given the corrupt nature of the Indian public administration that has to certify incomes.

Besides, several sectors of the economy, such as agriculture and business ventures, do not yield stable incomes. The incomes of these families tend to be volatile. A person may be classified as “poor” in one year and may avail the benefit of the quota, and may be classified as “not poor” in the following years. While incomes may change from year to year, the educational and employment benefits that a person receives due to such a classification are of a permanent nature.

Caste and Reservation: Constitutional Perspective

Reservations for any community cannot be accorded at the sweet will of any particular government. Nor it can be done due to political pressure by any politically organised community.

The judiciary has struck down the decision taken by the UPA government on extending reservations to Jats in nine States. Courts have set aside many administrative decisions made in ignorance of relevant material, or is based upon patently irrelevant material or for that matter is made mala fide. The assessment of a statutory Backward Classes Commission can constitute relevant material.

In Ram Singh vs. Union of India popularly called Jats reservations case, the apex court said, “Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste.

Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out to the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste-centric definition of backwardness.”

The affirmative action for weaker sections in the form of reservations is for backward classes but not backward castes. The constitution deliberately uses class in the relevant provisions quoted above.

In M R Balaji vs. State of Mysore in 1963, the Supreme Court held that a purely caste-based policy of reservations would violate the Constitution.

While this blanket position was undermined in NM Thomas and Indra Sawhney, the position remains that while castes, which are generally “socially and occupationally homogenous classes” (Indra Sawhney, para 84), can constitute a convenient starting point for a reservations, the ultimate criterion is class backwardness.

This means that caste groupings do not exhaust the scope of reservations under the constitutional scheme; and conversely, to the extent that a caste wishes to claim the benefits of the reservation scheme, it must demonstrate that qua class, it suffers from the social backwardness that Article 16 envisages.

The Supreme Court in Ramsingh case further said, “An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandate.”

In National Legal Services Authority vs. Union of India, the apex court observed, “New practices, methods and yardsticks have to be continuously evolved moving away from caste-centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action…”

The Apex Court in Ram Singh case further stated,“[the] inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.”

The judiciary seems to be holding the view that politically powerful castes can leverage upon their political clout and might appropriate affirmative action like reservations. If so, the courts would obviously step in as the judiciary in a constitutional democracy is endowed with the responsibility of preventing brute majoritarianism taking the political process hostage to the detriment of discrete and insular minorities. Stating that backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political, Supreme Court in the Ram Singh case said, “The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution.

Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State.”

The Constitution and Reservations: The fifty percent limit

The judiciary interpreted that the Constitution stipulates that reservations should not exceed 50 per cent.

The rationale for imposing 50 per cent rule is based on the relationship between affirmative action in the form of protective discrimination and the equality provisions of Indian Constitution. Vinay Sitapati in the section on reservation in The Oxford Handbook of The Indian Constitution (edited by Sujit Choudhary et al, 2016) terms this as one of balance between competing Constitutional principles of formal equality, social justice and efficiency.

Article 16(4) permits reservations as being an exception to the Constitutional principle of right to equality enshrined in Article 16(1). Since the exception cannot be greater than the rule, the reservations cannot exceed 50 per cent. H M Seervai in Constitutional Law of India (vol 1, Universal Book Traders) and Anirudh Prasad in Reservation Policy and Practice in India: A Means to an End (South Asia Books) describe this as Ambedkar constitutional vision.

Constitution enunciates a right to equality. It is the cornerstone of Indian Constitution. Article 16(4) calling for reservations is in fact a continuation of Article 16(1) that guarantees equality. The logic behind Article 16(4) is that unequals cannot be treated equally and, therefore, deserve affirmative action in favour of them. Therefore, it is wrong to read the reservations provisions of the Constitution as independent of or superior to equality provisions. Thus reservations provisions cannot limit the equality provisions, but can only be an extension of it.

In a majority judgement, the Supreme Court in the famous Indra Sawhney Case articulated that balancing various provisions of the Constitution meant that total quotas could not cross 50 per cent in any given year.

The apex court limits reservations to 50 per cent through Indra Sawhney Case verdict. But, Tamil Nadu has 69 per cent reservations. The Indra Sawhney Case posed a threat to the Tamil Nadu reservation formula. To protect these reservations, Parliament placed Tamil Nadu quota legislation in the Ninth Schedule of the Constitution. Laws placed in the Ninth Schedule were considered to be immune from judicial review till the later day Constitutional interpretation by the Supreme Court.

However, a recent verdict by the apex court held that even the laws in the Ninth Schedule are subject to judicial review if they violate the basic structure of the Constitution.

The Constitutional principles of equality, social justice and efficiency in public administration should be balanced. The Constitution clearly articulates equality. The provisions related to reservations are aimed at promoting social justice without detriment to the concept of equality.

Article 335 of the Constitution balances its vision of social justice in the form of reservations with the objective of maintaining efficiency of public administration. The limit of 50 per cent on the total reservations is placed to ensure this balance between what seems to be mutually contradictory yet complementary Constitutional provisions.

Article 335 states: “The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.”

Any form of protective discrimination in the form of reservations may promote social justice but would have an adverse impact on merit and efficiency which is also a Constitutional vision. Therefore, it is imperative to ensure that one Constitutional provision does not dominate the other.

Reservations cannot be opposed on the ground of merit or efficiency as Constitution itself allows such positive discrimination in favour of unequals. However, it is equally erroneous to frame a policy of affirmative action through protective discrimination completely undermining the principles of merit and efficiency. Thus, the 50 per cent limit is socially justified and constitutionally valid.

Caste and class overlap in India to a significant extent. The marginalised castes are marginalised classes. Reservations address the caste-based inequalities. Yet, caste and class are not synonymous. There are other forms of inequalities too. For instance, there are economically backward sections among upper castes even as compared to some of the marginalised caste families.

While accepting the greater similarity between caste and class to justify the reservations despite Constitutional vision of equality, the exception to the principle of caste-class similarity cannot also be ignored that too after the seven decades of social and economic development and decades of implementation of reservations.

Reservations policy fails to address other forms of inequalities that transcend caste. Therefore, limiting reservations to 50 per cent would prevent further accentuation of other forms of inequalities that transcend caste.

The Articles 15(4) and 16(4) of the Constitution that enable the state to provide reservations for certain classes are special provisions as enunciated in the said articles itself. In M R Balaji verdict, the Constitutional bench of the Supreme Court held that special provision must be within reasonable limits.

A special provision is not a provision which is exhaustive 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. It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society.

If a provision which is in the nature of an exception completely excludes the rest of the society that clearly is outside the scope of such a provision of the Constitution, it would be extremely unreasonable to assume that in enacting Articles the 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 constituting the rest of the society were to be completely and absolutely ignored. A Special provision must be within reasonable limits. The interests of weaker sections of society which are a first charge on the state and the Center have to be adjusted with the interests of the community as a whole. Special provision should be less than 50per cent.

The apex court in Indra Sawhney case stated that the special provisions contemplating reservations only “speaks of adequate representation and not proportionate representation.“ The court further observed: “Adequate representation cannot be read as proportionate representation.”

The Indra Sawhney Judgment held that the provision conceived in the interest of certain sections of society should be balanced against the guarantee of equality which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr Ambedkar himself contemplated reservation being "confined to a minority of seats." No other member of the Constituent Assembly suggested otherwise. It is thus clear that reservation of a majority of seats was never envisaged by the founding fathers.

The implementation of reservations in India is beset with many inadequacies and anomalies. Despite judiciary pronouncing creamy layer to exclude the forward among the backward from the purview of reservations, the policy is hardly implemented given the character of Indian economy and society. Political populism and compulsions of electoral democracy make it almost impossible to review the policy of reservation for a possible exclusion of any caste.

The manner in which the policy of reservations was actually executed makes the balancing act much more essential. However, there can be exceptions to this rule of 50 per cent limit. The apex court in Indra Sawhney case itself appreciated such extraordinary circumstances that make limit unwarranted.

The court said, “While 50 per cent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”

Reservation and sub-classification/sub-categorisation

The process of development or implementation of reservations effected class formation within a class, thus creating an impermeable membrane to block the percolation of benefits of reservations to the most deprived.

The Article 16(4) of the Constitution says, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” It is beyond controversy in Indian jurisprudence that Scheduled Castes and Scheduled Tribes are also included in the expression "Backward Class of citizens".

This reveals that the constitutional scheme of reservations as a positive discrimination mechanism is based on the philosophy of providing equal justice by correcting the imbalances in education and employment. Therefore, if a section of a class enjoys disproportionate benefits to the detriment of the others, sub-categorisation of the class is justified in accordance with the spirit of the constitution itself.

Such a sub-categorisation does not take away the benefit of reservations from anyone by sub-grouping. The categorisation is not an act of exclusion through application of creamy layer. Instead, it is only sought to be a remedy to deprivation of reservation for one group as the other disproportionately enjoys. Allotting a separate percentage of reservation for a subgroup from amongst the total reservation allotted to that group does not amount to depriving one class of the benefits of reservations.

The judicial objection to sub-categorisation of SCs can be on the ground that Scheduled castes are homogeneous and should be considered as a class in themselves for the Constitutional scheme of reservations.

But Justice VR Krishna Iyer said in State of Kerala vs N M Thomas, that a plain reading of Articles 341 and 342 of the Constitution (provisions related to SC and ST reservations) brings out the quintessential concept that they (Scheduled Castes and Scheduled Tribes) are an amalgam of castes, races, groups, tribes, communities thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President.

The reservation policy cannot be oblivious to the difference in degree of backwardness within a class of citizens as the philosophy of affirmative action is aimed at uplifting the most depressed and the most deprived. Therefore, having found a class of persons within the OBCs or SCs OR STs as having been deprived of such benefits the State has the exclusive legislative power to make such grouping for reservation under Articles 15(4) and 16(4) of the Constitution.

If a scientific study of social and economic conditions and the pattern of reservations empirically establishes that some particular groups within a group have cornered all the benefits at the cost of others in the said List, with a view to see that the benefit of reservation percolates to the weaker of the weakest it is necessary to enact sub-categorisation.

Further, sub-classification of the reserved classes is permissible in view of the judgment of the Supreme Court in the case of Indra Sawhney v. Union of India and Ors. 1992.

The Apex court in Indra Sawhney said," We are of the opinion that there is no constitutional or legal bar to a State categorising the Backward Classes as backward and more backward..."

If all of them are grouped together and reservation provided, the inevitably result would be that the less backward would take away all the reserved posts leaving none for more backward.

In Indra Sawhney, the court further observed “if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean, educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class.

Alter excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line - how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement”.

Chinnappa Reddy, J. in Vasant Kumar, said: “We do not see why on principle there cannot be a classification into Backward Classes and More Backward Classes, if both classes are not merely a little behind, but far behind the most advanced classes. In fact, such a classification would be necessary to help the more backward classes; otherwise those of the Backward Classes who might be a little more advanced than the more backward classes might walk away with all the seats”.

In the state of Jammu and Kashmir v. Triloki Nath Khosa and Ors., Supreme Court held, “Classification, however, is fraught with the danger that it may produce artificial inequalities and therefore, the right to classify is hedged in with salient restraints; or else, the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well marked classes characterised by different and distinct attainments. Classification, therefore, must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved”.