HIMACHAL PRADESH NATIONAL

LAW UNIVERSITY, SHIMLA

Assignment of Constitutional Law

“Reservation in employment : Importance of Socio
Economic Development After Indira Shawney”

FOURTH SEMESTER

Submitted to –
Mr. Chanchal Kr. Singh & Dr. Gurwinder Singh

Submitted by- Shivam Tiwari

Roll No. - 100171814
 Acknowledgement

It is not possible to prepare a project report without the assistance and

encouragement of other people. This one is certainly no exception. I am using
this opportunity to express my gratitude to everyone who supported me
throughout the course of this assignment. I am thankful for their aspiring
guidance, invaluably constructive criticism and friendly advice during the
assignment work. I am sincerely grateful to them for sharing their truthful and
illuminating views on a number of issues related to the project. I would like to
express my express my special gratitude to Prof. (Dr.) Nistha Jaswal and
Assistant Professors Mr. Chanchal Kr. Singh & Teaching Assitant Dr.
Gurwinder Singh who gave me the golden opportunity to do this wonderful
project, which also helped me in doing a lot of Research and I came to know
about so many new things for which I am indebted to them from the core of my
heart. I also acknowledge with a deep sense of reverence, my gratitude towards
my parents and member of my family, because of whom I have managed to
complete this assignment on time and who have always supported me morally.
At least, my gratitude goes to all of my friends who directly or indirectly helped
me to complete this assignment. Any omission in this brief acknowledgement
does not mean lack of gratitude.
INTRODUCTION
Right to Equality is one of the basic fundamental rights that the constitution of India guarantees
to all the citizens of the country. Article 16 deals with the equality of opportunity in matters of
public employment. Equal opportunity is a term which has differing definitions and there is no
consensus as to the precise meaning. The Constitution of India has given a wide interpretation
of this article. Equal Employment Opportunity (EEO) principles apply to:

 Access to jobs
 Conditions of employment
 Relationships in the workplace
 The evaluation of performance and
 The opportunity for training and career development.

“Article 16 is an instance of the application of the general rule with special reference to the
opportunity of appointments under the State. It says that there shall be equality of opportunity
for all citizens in matters relating to employment or appointment to any office under the State.

“If it stood alone all the backward communities would go to the wall in a society of uneven
basic social structure; the said rule of equality would remain only a utopian conception unless
a practical content was given to it… that is why the makers of the Constitution introduced
clause (4) in Art. 16.

“The expression “nothing in this article” is a legislative device to express its intention in a most
emphatic way that the power conferred thereunder is not limited in an what by the main
provision but falls outside it. It has not really carved out an exception but has preserved a power
untrammelled by the other provisions of the Article.”

What Article 16 guarantees is equality of opportunity in matters of appointment in State

services. Equality of opportunity connotes that every citizen shall be eligible for employment
or appointment to any office under the State according to his qualifications and capability, as
held by the Supreme Court in State of J. & K. v. K.V.N.T. Kholo, AIR 1974 S.C1. Article 16

1
AIR 1974 S.C.
therefore does not prevent the State from prescribing the necessary qualifications and selective
tests for recruitment of government services.

Concept of Reservation

Reservation as a concept is very wide. Different people understand reservation to mean

different things. One view of reservation as a generic concept is that reservation is an anti-
poverty measure. There is a different view which says that reservation is merely providing a
right to access and that it is not a right to redressal. Similarly, affirmative action as a generic
concept has a different connotation. Some says that reservation is not a part of affirmative
action’s where as others say that it is part of affirmative action. Our Constitution has however
incorporated the words “reservation” in Article 16(4) which word is not there in Article 15(4).
Therefore, the word “reservation” as a subject of Article 16(4) is different from the word
“reservation” as a general concept.

Reservation in Services Article. 16(4)

Under Art. 16(4), the state may make reservation of appointments of posts in favour of any
‘backward class’ of citizens which, in the opinion of the state, is not adequately represented in
the public services under the state. The term ‘state’ denotes both the Central and the State
Governments and their instrumentalities. Explaining the nature of Art. 16(4), the Supreme
Court has stated in Mohan Kumar Signghania v. Union of India2 that it is “an enabling
provision” conferring a discretionary power on the state for making any provision or
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 service of the state. Art. 16(4) neither
imposes any Constitutional duty nor confers any Fundamental Right on any one for claiming
reservation.

Under Art. 16(4), it is incumbent on a State Government to reach a conclusion that the
backward class/classes for which the reservation is made is not adequately represented in the
State services. While doing so, the State Government may take the total population of a
particular backward class and representation in the State services. When the State Government
after doing the necessary exercise makes the reservation and provides the extent of percentage

2
AIR1992 SC1.
of posts to be reserved for the said backward class, then the percentage has to be followed
strictly. If some Scheduled Caste or backward class candidates are appointed or promoted
against the general posts, they are not to be counted against the reserved posts. The number of
reserved posts cannot be reduced on this account. The State may, however, on an overall view
of the situation review the matter and refix the percentages of reservation.

Further Art. 16(4) has to be interpreted in the background of Art. 335. The Equality of
opportunity guaranteed by Art. 16(1) is to each individual citizen of the country while Art.
16(4) contemplates special provision being made in favour of the socially disadvantaged
classes. Both must be balanced against each other. Neither should be allowed to eclipse the
other. Accordingly, the rule of 50% reservation in a year should be taken as a unit and not the
entire strength of the cadre, service or the unit as the case may be.

Defining Backward Class

The term ‘Backward Class, as used in Art. 16(4), takes within its fold Scheduled Castes and
Scheduled Tribes. Art. 15(4) speaks about “socially and educationally backward classes of
citizens” Art. 16(4) speaks only of “any backward class of citizens.” However, it has been
settled by a series of judicial pronouncements that the expression “backward class of citizens”
in Art. 16(4) means the same thing as the expression “any socially and educationally backward
classes of citizens” in 16(4), one must be a member of a socially and educationally backward
class. It has been emphasized that the expression. “Backward Class” is not synonymous with
“backward caste” or “backward community.” In determining whether a section of population
forms a Backward Class for purposes of Art. 16(4), a test solely based on caste, community,
race, religion, sex, descent, place of birth or residence cannot be adopted because it would
directly be violative of Art. 16(2).

Right to equality & Reservation

Art. 16(4) does not, however, cover the entire ground covered by Arts. 16(1) and 16(2). Some
of the matters relating to employment in respect of which Equality of opportunity has been
predicated by Arts. 16(1) and 16(2) do not fall within the scope of the non-obstinate clause in
Art. 16(4). For instance, as regards conditions of service relating to employment, such as, salary
increment, gratuity, pension and age of superannuation are matters relating to employment and,
as such, they do not form the subject matter of Art. 16 (4). It means that, in these matters, there
can be no exception even in regard to the backward classes of citizens. In other words, these
matters relating to employment are absolutely protected by the doctrine of Equality and do not
form the subject-matter of Art. 16(4). Art. 16(4) neither confers a Right on anyone to claim,
nor imposes a Constitutional duty on the government to make, any reservation for any one in
public services. It is merely an enabling provision and confers a discretionary power on the
state to reserve posts in favour of backward classes of citizens, which in its opinion, are not
adequately represented in the state services. A balance needs to be struck between individual
Rights under Arts. 14 and 16(1), on the one hand, and the affirmative action taken by the State
under Art. 16(4). Therefore reservation under Art. 16(4) has to be within reasonable and
legitimate limits. In making reservation under Art. 16(4), the state cannot ignore the
Fundamental Rights of the rest of the citizens.

Commenting on Art. 16(4), the Supreme Court has observed in Dr Preeti Sagar v. State of
Madhya Pradesh3 that the Constitution permits preferential treatment for historically
disadvantaged groups in the context of entrenched and clearly perceived social inequalities.
That is why Art. 16(4) permits reservation of appointments or posts in favour of any backward
class which is not adequately represented in the services under the State. Reservation is linked
with adequate representation in the services. Reservation is thus a dynamic and flexible
concept. The departure from the principle of Equality of opportunity has to be constantly
watched. So long as the backward group is. Not adequately represented in the services under
the State, reservations should be made.

Judicial Treatment

In the historic case of Indra Sawhney vs. Union of India,19924 popularly known as the mandal
case, supreme court examined the scope and extent of reservation under Article 15(4) and 16(4)
respectively in detail and clarified various aspects on which there were difference of opinion
in various earlier judgments. The majority opinion of Supreme Court may be summarized
briefly as follows: Article 16(1) permits classification for ensuring attainment of equality of
opportunity guaranteed under Article 16(1) itself. Article 16(4) is not an exception to Article
16(1) but only an instance of classification implicit and permitted by Article 16(1).
Backwardness contemplated in article 16(4) do not necessarily refer to social and educational
backwardness. Poverty cannot be the sole criterion for determining the backward classes.
Exclusion of creamy layer. Reservation shall not ordinarily exceed 50% barring extraordinary

3
Dr Preeti Sagar v. State of Madhya Pradesh AIR1999 SC 2894
4
AIR 1993 SC 477, 1992
situations which may warrant relaxation of this rule. No reservation in the matters of
promotion. After Indra Sawhney where the court held that reservation under Article 16(4) must
only be confined to appointment and not promotion and that 50% ceiling limit should be
applied, so as not to choke the general category, the government for their vote bank interests
amended the constitution inserted Article 16(4-A) by constitutional 77th amendment Act, 1995
to dilute the effect of Indra Sawhney Judgment, empowering state for making any provision
for reservation in matters of promotion, with consequential seniority, to any class or classes of
posts in service under the state in favour of SC/STs which in the opinion, are not adequate by
represented in the services under state. Again by constitutional 81st amendment Act, 2000
Article 16(4-B) was inserted to permit government to treat the backlog of reserved vacancies
as separate and distinct, to which the limit of 50% ceiling in reservation does not apply. Simply
trying to legitimize their ill motivates for political gains having least regard to over all scenario
of nations development.

H.M Seervai criticized the Judgment of Indra Sawhney primarily on the ground that court
should not have relied on the recommendations of the Mandal Commission which formed the
basis of the office memoranda.

The present socio economic scenario.

According to the Global Wealth Report-2018 of Credit Suisse Group AG released in October
201821, the richest 1 per cent of Indians own 51.5 per cent of the country’s wealth, the richest
10 per cent own 77.4 per cent, the richest 20 per cent own 86.6 per cent, and the bottom 60 per
cent own just 4.7 per cent. Though caste-wise break-up is not available, it is reasonable to
assume that barring a few exceptions, SC, ST, and OBC-NCL are more likely to figure in the
bottom 60 per cent while the Hindu forward castes are more likely to figure in the top 20 per
cent.

Thus the 103rd Amendment has the effect of enhancing and cementing the representation of
the Hindu forward castes and others who are already over-represented in the public services
relative to their population, who have almost monopolised the corporate boardrooms, and who
own a disproportionate percentage of the country’s wealth. This does violence to the concept
of equality as is commonly understood and changes it beyond recognition and fails the “identity
test” prescribed in M. Nagaraj5

5
M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006
The income limit of Rs. eight lakhs and the asset limits prescribed for determining economic
backwardness are the same as the limits fixed for determining the ‘creamy layer’ for OBC.
This would mean that the 103rd Amendment practically erases the difference between the
OBC-NCL (who are socially and educationally backward) and the "EWS other than SC, ST
and OBC-NCL" (who are not socially backward and about whom there are no empirical data
to show that they are educationally backward). This would be a case of treating unequals
equally.

The 103rd Amendment breaches the "50 per cent ceiling" rule for total reservations that the
Supreme Court has consistently upheld since M.R. Balaji6 as maintaining the proper balance
between formal equality and substantive equality, and which has got Constitutional
imprimatur, albeit indirectly, in Article 16(4B) introduced by the Constitution (81st
Amendment) Act, 2000. It therefore fails one of the conditions (quantitative limitation) of the
"width test" prescribed in M. Nagaraj7 for determining the validity of a constitutional
amendment in the light of a basic structure challenge. All these years, the ratio of the "50 per
cent ceiling" was the main judicial counter to the demand for greater reservation from various
pressure groups. I can’t see the Supreme Court coming up with any satisfactory judicial logic
to plug reservations at any limit other than 50 per cent; any higher limit will be artificial and
contrived and will not have credibility.

Relation between reservation and principle of equality

Equality has been promised by State under Article 14 of the Indian Constitution and Article 14
is considered as the soul of the Indian Constitution because without equality no country can be
considered as republic and it is the need of equality which have forced human beings to come
under state so that they can get security, equal protection of law and equality in all aspects. In
our Preamble we have adopted the word equality from French Revolution which itself shows
the aims of our Constitution and Article 14 further is a step forward towards the
accomplishment of that aim. Equality itself means that like should be treated alike and not
unlike should be treated like. That is why Article 14 permits reasonable classification between
likes and unlikes so that unlike should be given special treatment to bring them on the equal
footing with the likes and in fact identical treatment in unequal circumstances would itself
amount to inequality. Goal of equality will not be considered to be achieved till everyone will

6
1963 AIR 649, 1962 SCR Supl. (1) 439
7
M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006
be on the equal footing. Thus idea to attain equality has given birth to the concept of reservation
or affirmative action. Reservation is a special treatment given to the unlikes till they come on
the equal footing with the likes in the society. Reservation is a concept developed with a view
to provide special help to the weak so that they can overcome their weakness and can compete
with the strong. In landmark judgments like D.V. Bakshi v. Union of India8 and Air India v.
Nargesh Mirza9 Supreme Court has given wonderful Judgments which proves that which has
proved that inequality anywhere will never be tolerated and therefore Judgments of these cases
have established new landmarks in the concept of equality. Equality is a state of complete
justice and in order to attain it reservation is a powerful remedy. Reservation have proved to
be highly successful in many countries for e.g. U.S. has affirmative action for blacks and in
various other countries reservation is playing major role in narrowing the gap between different
classes.

In the historic Mandal Commission case the Supreme Court by the 6-3 majority has held that
the sub classification of the backward classes into more backward classes and backward classes
can be done for the purpose of Article 16(4).But as a result of sub classification the reservation
cannot exceed more than 50 percent. The distinction should be based on the degree of social
backwardness. In fact such classification would be necessary to help the more backward classes
otherwise those of the Backward Classes who are little more advanced than the more backward
classes might take away all the seats. “Thus reservation and equality are two sides of the same
coin and if equality is the aim then reservation is the best possible way to reach that aim”

The Mandal judgment’s middle path

The Supreme Court addressed this question again in Indra Sawhney v. Union of India (1992)10
better known as the Mandal Commission case. Endorsing the interpretation of N.M. Thomas,11
the Supreme Court ruled:

“Accordingly, we hold that Clause (4) of Article 16 is not an exception to Clause (1) of Article
16. It is an instance of classification implicit in and permitted by Clause (1). . . It is a provision
which must be read along with and in harmony with Clause (1). Indeed, even without Clause
(4), it would have been permissible for the State to have evolved such a classification and made

8
AIR 1993 SC 2374, 1994 (46) ECC 1, 1993 ECR 209 SC, 1994 (74) ELT 200 SC, JT 1993 (4) SC 180, 1993
(3) SCALE 69, (1993) 3 SCC 663, 1993 Supp 1 SCR 200
9
1981 AIR 1829, 1982 SCR (1) 438
10
AIR 1993 SC 477, 1992
11
1976 AIR 490, 1976 SCR (1) 906
a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the
matter beyond any doubt in specific terms.”

At the same time, the Supreme Court contrived to maintain the ‘50 per cent ceiling’ rule by
holding: “Just as every power must be exercised reasonably and fairly, the power conferred by
Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits
– and what is more reasonable than to say that reservation under Clause (4) shall not exceed
50% of the appointments or posts, barring certain extra-ordinary situations as explained
hereinafter. . . The provision under Article 16(4) - conceived in the interest of certain sections
of society - should be balanced against the guarantee of equality enshrined in Clause (1) of
Article 16 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. From the
above discussion, the irresistible conclusion that follows is that the reservation contemplated
in Clause (4) of Article 16 should not exceed 50%”.

In short, the Supreme Court’s ruling in Indra Sawhney represents a compromise or middle path
between M.R. Balaji12 and N.M. Thomas.13 It struck a balance between formal equality and
substantive equality by reaffirming the ‘50 per cent ceiling’ rule. Curiously, the Supreme Court
left a small loophole open by stating:

“While 50% 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 mainstream of national life and in view of conditions peculiar
to and characteristic of 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”.

It is relevant to point out here that when the Government of Gujarat, in response to the Patidar
agitation, issued an Ordinance in 2016 providing for 10 per cent reservation in higher education
and public employment for “economically weaker sections of unreserved categories with
annual income below Rs.6 lakhs”, the same was quashed by the High Court of Gujarat (2016)

12
1963 AIR 649, 1962 SCR Supl. (1) 439
13
1976 AIR 490, 1976 SCR (1) 906
based on the Indra Sawhney precedent. When the State Government relied on the
‘extraordinary situation’ loophole in Indra Sawhney for breaching the “50 per ceiling” rule for
reservations, the High Court of Gujarat rejected this contention, and rightly so, by stating that
no such ‘extraordinary situation’ was made out in the case of reservation for the economically
weaker sections.

Conclusion

There is no doubt that the constitutional guarantee of equality of opportunity can be

achieved inter alia by discrimination with reason. However, like any other classification, any
differential treatment must necessarily connect to the constitutionally permissible object.
Essentially, the issue before the Indra Sawhney court was

(i) whether the classification on the basis of caste is permissible, and

(ii) whether there is a rational nexus to such caste-based classification for the
advancement of backward classes of citizens.

The authors answer both the above questions in the negative. A classification on the basis of
caste is impermissible in light of the constitutional bar against discrimination on the basis of
caste. This cannot be circumvented by stating that the classification is not on the basis of caste
in itself, but only using caste as a marker for identification of backward class, since it would
still amount to recognition of a caste-collective, that is impermissible under the Constitution.
Further, there is no rational nexus between classification on the basis of castes and
advancement of backward classes as 'castes' and 'classes' are conceptually different, even
though there may be a high degree of empirical overlap.

In Indra Sawhney, the Supreme Court was tasked with resolving "complex problems of Indian
Society, wrapped and presented as constitutional and legal questions" Unfortunately, it seems
like the Court has not been successful in either – while attempting to resolve societal problems,
the Supreme Court has not only lost sight of core constitutional principles, but also exacerbated
the societal problem of casteism, for reasons outlined earlier. It has whittled away the deliberate
distinction between "caste" and "class" that the framers struggled for and thus, the case stands
on constitutionally shaky grounds. In trying to settle a constitutional question, the Supreme
Court unwittingly opened up a political can of worms.