THE NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

CONSTITUTIONAL LAW- II
FOURTH TRIMESTER
PROJECT
A CRITICAL STUDY ON “AFFERMATIVE-ACTION”

SUBMITTED BY: SUBMITTED TO:

RAJNEESH PRAJAPATI MISS. KULDEEP KAUR
2018 BA LLB (HONS) 09 (ASSOCIATE PROFESSOR)

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Certificate
This is to certify that the research paper titled ― A critical study on “Affermative-

Action” has been prepared and submitted by Rajneesh Prajapati who is currently
pursuing their BA LLB(Hons.) at National Law Institute University, Bhopal in
fulfillment of Constitutional Law - II course. It is also certified that this is an original
research report and this paper has not been submitted to any other university, nor
published in any journal.
Date-
Signature of the student-
Signature of Research Supervisor-

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Acknowledgement
The project has been made possible by the unconditional support of many people. We
would like to acknowledge and extend our heartfelt gratitude to Miss. Kuldeep Kaur for
guiding us throughout the development of this paper into a coherent whole by providing
helpful insights and sharing her brilliant expertise. I would also like to thank the officials
of the Gyan Mandir, NLIU for helping us to find the appropriate research material for this
study.
I am deeply indebted to my parents, seniors and friends for all the moral support and
encouragement.
Rajneesh Prajapati
2018B.A.LL.B.09

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Contents
INTRODUCTION...............................................................................................................6

MEANING OF AFFIRMATIVE ACTION........................................................................7

BACKWARD CLASSES................................................................................................7

SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES.............................12

QUANTUM 0F RESERVATION.....................................................................................13

DIFFERENCE BETWEEN HORIZONTAL AND VERTICAL RESERVATION.........16

RESERVATION IN ADMISSIONS.................................................................................17

REVIEW OF LITERATURE............................................................................................21

CONCLUSION..................................................................................................................22

Cases
EV Chinnaiah v. State of AP, (2005) 1 SCC 394............................................................4, 8
Indra Sawhney v. U0I, 1992 Supp (3) SCC 217..................................................................9
MR Balaji v. State of Mysore AIR 1963, SC 649.............................................................11
State of Madras v Champkam Dorairajan, AIR 1951 SC 226.............................................7

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 INTRODUCTION

India’s affirmative action (AA) programme is primarily caste-based, although there is

some AA for women in the electoral sphere. AA in India, as elsewhere in the world, is
contentious for three reasons.
First, there is considerable debate over the assessment of caste disparities, the prima facie
reason for the existence of AA – whether these are significant at all; if yes, to what extent
and in which sphere; and whether they have been narrowing over time.
Second, there is a larger debate about whether caste is the valid indicator of
backwardness or should AA be defined in terms of class/income or other social markers,
such as religion.
Third, there is the overarching debate about whether AA is desirable at all, in any form,
regardless of which social identity is used as its anchor.
In the polarised debate around AA, it is either demonised as the root of all evil or
valorised as the panacea for eliminating discrimination. It is worth noting at the outset
that Dr. B. R. Ambedkar, the chief architect of the constitution of independent India, who
ensured that AA was constitutionally mandated, himself did not see AA as a panacea. He
did not believe that the caste system could be made less malignant.
He said “…my ideal would be a society based on Liberty, Equality and Fraternity… [the
caste system] means a state of slavery … a society in which some men are forced to
accept from others the purposes which control their conduct” (emphasis in the original).
He was constantly engaged with the question of strategies and instruments which would
lead to the annihilation of caste altogether. However, while the debates around AA are
emotionally charged, it is important to take stock of AA dispassionately through an
evidence-based approach. Available national data on caste are defined by the needs of the
affirmative action program which divides the population into initially three, and now
four, broad groups: Scheduled Castes (ex-untouchable jatis, SC), on average about 18
percent of the Indian population; Scheduled Tribes (ST), on average about 8 percent of
the Indian population; Other Backward Classes (OBCs, a heterogeneous collection of
Hindu low castes, some non-Hindu communities and some tribes which are not included
in the STs), not yet counted by the census; however according to the 66th round of the

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National Sample Survey (2009-10), these constitute 43 percent of the rural and 39 percent
of the urban population and “Others” (the residual; everyone else). While the term
Scheduled Castes is a product of this official terminology, several members of the ex
untouchable jatis prefer to self-identify themselves as “Dalit” – the originally Sanskrit but
now Marathi term, meaning “oppressed” or “broken”, which is used as a term of pride.

MEANING OF AFFIRMATIVE ACTION

BACKWARD CLASSES

Article 15(1) would have come in the way of making favourable provisions for backward
section of society. This can be illustrated by referring to two cases.
The Madras Government issued an order [popularly known as the Communal GO]
allotting seats in the State medical colleges community-wise as follows:
 Non-Brahmin (Hindus)
 Back ward Hindus.
 Brahmins.
 Harijans
 Anglo- Indians
 Indian Christians, and
 Muslims,
This GO was declared Invalid because it classified students merely on the basis of ‘caste’
and ‘religion' Irrespective of their merit.1 A seven Judge Bench of the Supreme Court
struck down the classification u bean; based on caste race and religion for the purpose of
admission to educational institutions on the ground that Article 15 did not contain a
clause such as Article 16(4).

1
State of Madras v Champkam Dorairajan, AIR 1951 SC 226 See also, under Article 29(2), infra, chapter
XXX, SCCthIl A.

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In another case. a government order requisitioning land for construction of a colony for
Harijan was held to be discriminatory under Article 15(1) because the facilities were
being given to them as a ‘community' n such when other members of the public were
equally in need of similar facilities.2 To tide over the difficulties created by such
decisions in the way of helping backward classes by making discriminatory provisions in
their favour, Article 15(4) was added to the Constitution in 1951. Article 15(4) says that
the state is not prevented from making any special provisions for “the advancement of
any socially and educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes”.
Thus, an order acquiring land for constructing a colony for Harijans is now valid under
Article 15(4).3 Article 15(4) does not justify grant of special remission to the prisoners of
Scheduled Cum and Scheduled Tribe: and not to others. The grant of remission of
convicted prisoners belonging to these classes can hardly be said to be a measure for the
“advancement” of the Scheduled Cam and Scheduled Tribes.4
1t may be noted that the Constitution makes a few more provisions for development and
amelioration the condition of these classes of people which are discussed later at the
appropriate places.5
Article 15(4) confers discretion and does not create any constitutional duty or obligation.
Hence no Mandamus can be issued either to provide for reservation or for relaxation. 6
Under Article 15(4), in innumerable casea,66 the reservation of seats for Scheduled
Castes, Scheduled Tribes and Backward Classes in engineering, medical and other
technological colleges has been upheld. Reservations are possible under Article 15(4) for
the advancement of any backward class of citizens or for Scheduled Castes and
Scheduled Tribes. Rejecting the argument that Article 15(4) envisages “positive action”
while Article 16(4)"7 is a provision warranting programme: of “positive discrimination”,
the Supreme Court has observed in Indra Sawhney v. U0I 7

2
Jagwant Kaur v State ofMaharashtra, AIR 1952 Born. 461
3
 Moosa v. State of Kerala, AIR 1960 Ker. 355
4
State of Madhya Pradesh v. Mohan Singh, AIR 1996 SC 2106
5
See, under Article 29, infra, chapter m, section A; under DPSP chapter XXXIV, “Safeguards to
Minorities” etc, chapter XXXV.
6
U0I v. R Rajeshwaran, (2003) 9 SCC 294
7
AIR 1993 sc 477

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We are afraid we may not be able to fit these provisions into this kind of
compartmentalisation in the context and scheme of our constitutional provisions. By now,
it is well settled that reservation in educational institutions and other walks of life can be
provided under Article 16 15(4) just as reservations can be provided in services under
Article 16(4). 11 so, it would not be correct to confine Article 15(4) to programmes of
positive action alone. Article 15(4) is wider than Article 16(4) is as much as several kinds
of positive action programmes can al« so be evolved and implemented there under (in
addition to reservations) to improve the conditions of SEBCs (Socially and Educationally
Backward Classes), Scheduled Castes and Scheduled Tribes, whereas Article 16(4)
speaks only of one type of remedial measure, name1y, reservation of appointments posts.

The scope of A 15(4) is wider than Article 16(4). Article 15(4) covers within it several ,
kinds of positive action programmes in addition to reservations. However, reservation of
posts and appointments must be Within reasonable limits, viz., 50% at the maximum.
The same limit applies to article Reservation to a backward class is not a constitutional
mandate, but a prerogative the State.8
Reservation for a backward class is not a constitutional mandate. The provisions of
Articles 330(1)(b) and show that the Constitution has treated Scheduled Tribes in the
autonomous district of Assam as a separate category distinct from all other Scheduled
Tribes. This clearly indicates that when the Constitution makers wanted to make a sub
classification of Scheduled Tribes, they have themselves made it1n the text of the
Constitution itself and have not empowered any legislature or Government to make such
a sub classification.
In Chinnaiah9 the Court also said that Article 341 indicates that there can be only one list
of Scheduled Castes in regard to a State and that list should include all specified castes,
races or tribes or part or groups notified in that Presidential List. In the entire Constitution
wherever reference has been made to “Scheduled Castes” it refers only to the list
prepared by the PreS1dent under Article 341 and there is no reference to any sub
classification or division in the said list except, may be, for the limited purpose of Article
330. Therefore, it is clear that the Constitution intended all the castes including the sub-
8
EV Chinnaiah v. State of AP, (2005) 1 SCC 394 
9
Ibid.

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castes, races and tribes mentioned in the list to be members of one group for the purpose
of the Constitution and this group cannot be subdivided for any purpose. The Constitution
intended that all the castes included in the Schedule under Article 341 would be deemed
to be one class of persons.
The principles laid down in Indra Sawhney case, 10 for sub classification of other
Backward Classes cannot be applied as a precedent for sub classification or sub grouping
Scheduled Castes in the Presidential List because that very judgment itself has
specifically held that subdivision of other backward classes is not applicable to scheduled
castes and scheduled tribes. This is for the obvious reason is the Constitution itself has
kept the Scheduled Castes and Scheduled Tribes List out of interference by the State
Government.11
A woman who by birth did not belong to a backward class or community, would not be
entitled to contest a seat reserved for a backward class community merely on the basis of
her marriage to a male of that community.12
The validity of the Scheduled Castes and Scheduled Tribes (Provision of Transfer of
Certain Lands Act, 1978) which restricted the transfer by SC or ST of any land granted to
them for particular period of time (eg 3 years) has been upheld because of their poverty,
lack of education and backwardness which was exploited by the stronger section of the
society was not unreasonable and hence not violative of Article 19(1)(f) of the
Constitution. If the object of reservation is to take affirmative action in favour of a class
which is socially, educationally and economically backward, the State’s jurisdiction
while exercising its executive or legislative power is to decide as to what extent
reservation should be made for them either in public service or for obtaining admission in
educational institutions. Having already fulfilled this part of its constitutional obligation,
such a class cannot be subdivided so as to give more preference to a minuscule proportion
of the Scheduled Castes in preference to other members of the same class. It is not open
to the State to sub classify a class already recognized by the Constitution and allot a
portion of the already reserved quota amongst the State created subclass within the list of
scheduled casts. Furthermore, the emphasis on efficient administration placed by Article

10
Indra Sawhney v. U0I, 1992 Supp (3) SCC 217.
11
EV Chinnaiah v State ofAP, (2005) 1 SCC 394 : AIR 2005 SC 162
12
Sandhya Thakur v Vimla Devi Kushwah, (2005) 2 SCC 731

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335 of the Constitution must also be considered when the Claims of Scheduled Castes
and Scheduled Tribes to employment in the services of the Union are to
be considered. Since the State had already allotted 15% of the total quota of the
reservation available for backward classes to the Scheduled Castes the question of
allotting any reservation under the impugned Act to the backward classes did not arise.
The very fact that a legal fiction has been created is itself suggestive of the fact that the
legislature of a State cannot take any action which would be contrary to or inconsistent
therewith. The very idea of placing different castes or tribes or group or part thereof in a
State as a conglomeration by way of a deeming definition clearly suggests that they are
not to be subdivided or sub-classified further. A uniform yardstick must be adopted for
giving benefits to the members of the Scheduled Castes for the purpose of the
Constitution, For the purpose of identifying backwardness, a further inquiry can be made
by appointing a commission as to who amongst the members of the Scheduled Castes is
more backward. If benefits of reservation are not percolating to them equitably, measures
should be taken to see that they are given such adequate or additional training so as to
enable them to compete with the others but the same would not mean that in the process
of rationalising the reservation to the Scheduled Castes the constitutional mandate of
Articles 14, 15 and 16 could be violated. Reservation must be considered from the social
objective angle, having regard to the Constitutional scheme, and not as a political issue
and, thus, adequate representation must be given to the members of the Scheduled Castes
as a group and not to two or more groups of persons or members of castes.13
As regards the identification of the “Scheduled Castes” and “Scheduled Tribes reference
is to be made to Articles 341 and 342. These Constitutional provisions are discussed later
in this book.14

SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES

A major difficulty raised by Article 15(4) is regarding the determination of who are
‘socially and educationally backward classes.’ This is not a simple matter as sociological
and economic considerations come into play in evolving proper criteria for its
13
EV Chinnaiah v State ofAP, (2005) 1 SCC 394
14
See Chapter XXXV, of M.P. Jain 8th edition

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determination. Article 15(4) lays down no criteria to designate ‘backward classes’; it
leaves the matter to the state to specify backward classes, but the courts can go into the
question whether the criteria used by the state for the purpose are relevant or not.
The question of defining backward classes has been considered by the Supreme Court in
a number of cases. On the whole, the Supreme Court’s approach has been that state
resources are limited; protection to one group affects the constitutional rights of other
citizens to demand equal opportunity, and efficiency and public interest have to be
maintained in public services because it is implicit in the very idea of reservation that a
less meritorious person is being preferred to a more meritorious person. The Court also
seeks to guard against the perpetuation of the caste system in India and the inclusion of
advance classes within the term backward classes.
From the several judicial pronouncements concerning the definition of backward classes,
several propositions emerge.
First, the backwardness envisaged by Article 15(4) is both social and educational and not
either social or educational. This means that a class to be identified as backward should
be both socially and educationally backward.15 In Balaji, the Court equated the “social
and educational backwardness” to that of the “Scheduled Castes and Scheduled Tribes”.
The Court observed: “It was realised that in the Indian society there were other classes of
citizens who were equally, or may be somewhat less, backward than the Scheduled
Castes and Scheduled Tribes and it was thought that some special provision ought to be
made even for them.”
Secondly, poverty alone cannot be the test of backwardness in India because by and large
people are poor and, therefore, large sections of population would fall under the
backward category and thus the whole object of reservation would be frustrated.16

Thirdly, backwardness should be comparable, though not exactly similar, to the

Scheduled Castes and Scheduled Tribes.

Fourthly, ‘caste’ may be a relevant factor to define backwardness, but it cannot be the
sole or even the dominant criterion. If classification for social backwardness were to be
15
MR Balaji v. State of Mysore AIR 1963, SC 649
16
Janki Prasad Parimoo v. State of J&K AIR 1973, SC 930

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based solely on caste, then the caste system would be perpetuated in the Indian society.79
Also this test would break down in relation to those sections of society which do not
recognise caste in the conventional sense as known to the Hindu society.

Fifthly over , occupations, place of   habitation, all contribute to backwardness and such
factors cannot be ignored.

Sixthly, backwardness may be defined without reference to caste. AS the Supreme Court
has but only speaks of classes” emphasised, Article 15(4) “does not speak of castes but
only speaks of classes and that caste and class are not synonymous. Therefore, exclusion
of caste to ascertain backwardness does not vitiate Classification if it satisfies other tests.

QUANTUM 0F RESERVATION

What is the extent of reservation that can be made under Article 15(4) The Supreme
Court has set its face, generally speaking, against excessive reservation, for it is bound to
affect efficiency and quality by eliminating general competition.
For the first time, in Balaji,17 the question was raised before the Supreme Court relating to
the extent of special provisions which the States can make under Article 15(4). In this
case, reservation up to 68% was made by the State of Mysore for backward classes for
admission to the State medical and engineering colleges. The break-up of the reservation
was as follows: 50% seats for back ward and ‘more’ backward classes; 15% seats for
Scheduled Castes; 3% seats for the Scheduled Tribes. In effect, 68% seats were reserved
in medical, engineering and other technical colleges for the weaker sections of the
society, leaving only 32% seats for the merit pool.
The State even argued that since Article 15(4) does not contain any limitation on the
State’s power to make reservation, cent percent reservation could be made in favour of
backward classes in the higher educational institution if the problem of backwardness in a

17
MR Balaji v State of Mysore, AIR 1963 SC 649

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State so demanded. The Supreme Court rejected this extreme argument. The Court also
rejected the rule of 68% reservation.
The Court agreed, on the one hand, that Article 15(4) must be read with Article 46, a
Directive Pn'nciple,18 and steps ought to be taken to redress backwardness and inequality
from which the backward classes, Scheduled Castes and Scheduled Tribes suffer
otherwise for them political freedom and Fundamental Rights would have little meaning.
On the other hand, the Court insisted that Article 15(4) being a special provision cannot
denude Article 15(l) of all its significance. Article 15(4) “is not a provision which is
exclusive in character, so that in looking after the advancement of those classes, the State
would be justified in ingoing altogether the advancement of the rest of the society.” The
Court observed: It is because the interests of the society at large would be served by
promoting the advancement of the weaker elements in the society that Article 15(4)
authorises special provision to be made. But 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
Article 15(4). It would be extremely unreasonable to assume that in enacting Article
15(4) 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 consisting of the rest of the society were to be completely ignored. J)

The Court emphasised that a special provision contemplated by Article 15(4) must be
within “able limits. The interests of the weaker sections of society have to be adjusted.
With the inter the community as a whole. The Court insisted that considerations of
national interest and the community or society as a whole cannot be ignored in
determining the reasonable special provision under Article 15(4). The Court observed on
this point. The demand for technicians, scientists, doctors, economists, engineers and
experts for the further economic advancement of the country is so great that it would
cause grave prejudice to national interests if considerations of merit are completely
excluded by wholesale reservation of seats in all technical, medical or engineering
colleges or institutions of that kind.

18
See chapter XXXIV of M.P. Jain 8th edition

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Thus the Supreme Court set its face against excessive reservation under Article 15(4), for
it affect efficiency by eliminating general competition. The general principle laid down
by the 90 is that the maximum limit of reservation should not be more than 50% for all
classes under article 15(4), viz., backward classes, Scheduled Castes and Scheduled
Tribes. Thus, reservation of 8% was declared void in Balaji. The Court observed that the
interests of the weaker sections of the society need to be adjusted with interests of the
society as a whole.
In Balaji, the Supreme Court clearly indicated that in giving effect to reservations for
SCs, STs and OBCs, a balance ought to be struck so that the interests of the backward
classes, STs and SCs are properly balanced with the interests of the other segments of the
society. In order to safeguard me interests of the reserved classes, the interests of the
community as a whole cannot be ignored. It has to be remembered that Article 15(4) is an
enabling provision and its objective is to advance the interests of the weaker elements in
society. Reservations under Article 15(4) must be within a reasonable limit. If a provision
under Article 15(4) ignores the interests of the society as a whole, it would be clearly
outside the purview of Article 15(4). It may be noted that the over-all limit of 50%
reservation is only for the categories mentioned in Article 15(4); there could be additional
reservation for other classes. For admission to the State medical colleges, the Madhya
Pradesh Government made the following reservation of seats: Scheduled Castes, 15%;
Scheduled Tribes, 15%; Women candidates, 15%; Children of military personnel, 3%;
Nominees of the Central Government, 3% and nominees of Jammu & Kashmir
Government, 3%. The Scheme was challenged but the Supreme Court upheld it in State
of Madhya Pradesh v. Nivedita Jain.19

19
 AIR 1981 SC 2045

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 DIFFERENCE BETWEEN HORIZONTAL AND VERTICAL
RESERVATION

There are two types of reservation which are exist in India are as follow :

1. Vertical

2. Horizontal

The vertical reservation is meant for socially backward class,

whereas horizontal reservation is for other categories, i.e. for women, handicapped and
ex-service personnel, etc. The two categories of reservation operate separately. The
social reservation is vertical.

Social reservations in favour of SC, ST and OBC under Article 16(4) are

'vertical reservations'. Special reservations in favour of physically handicapped, women
etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where
a vertical reservation is made in favour of a backward class under Article 16(4), the
candidates belonging to such backward class, may compete for non-reserved posts and if
they are appointed to the non-reserved posts on their own merit, their numbers will not be
counted against the quota reserved for the respective backward class.

Therefore, if the number of SC candidates, who by their own merit, get selected to open
competition vacancies, equals or even exceeds the percentage of posts reserved for SC
candidates, it cannot be said the reservation quota for SCs has been filled. The
entire reservation quota will be intact and available in addition to those selected under
Open Competition category.20 But the aforesaid principle applicable to vertical
(social) reservations will not apply to horizontal (special) reservations. Where a
special reservation for women is provided within the social reservation for Scheduled
Castes, the proper procedure is first to fill up the quota for scheduled castes in order of

20
Vide - Indira Sawhney v. UOI R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India
vs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996 (3) SCC 253)].

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merit and then find out the number of candidates among them who belong to the
special reservation group of 'Scheduled Castes-Women.

If the number of women in such list is equal to or more than the number of
special reservation quota, then there is no need for further selection towards the
special reservation quota. Only if there is any shortfall, the requisite number of scheduled
caste women shall have to be taken by deleting the corresponding number of candidates
from the bottom of the list relating to Scheduled Castes. To this
extent, horizontal(special) reservation differs from vertical (social) reservation. Thus
women selected on merit within the vertical reservation quota will be counted against
the horizontal reservation for women. Let us illustrate by an example :

In the said judgment, how the reservation has to be arranged, is explained and needs to be

applied in all the cases. The appointing authority is to first arrange the list of open
category in order of merit followed by list for providing social reservation i.e. to SC, ST,
SBC and OBC category. The horizontal reservation is provided subsequently but while
doing so, if a candidate is entitled for horizontal reservation and finds place in the merit
list of open category or of socially backward class, would be counted
towards horizontal reservation. If it satisfies the required number of reservation meant
for horizontal reservation, then is to be taken in satisfaction of the reservation. The
difference between vertical and horizontal reservation is thus made out because while
providing vertical reservation to the socially backward classes, a candidate finding place
in the open category would not be counted towards reservation, whereas in
the horizontal reservation, it is allowed to be counted.21

RESERVATION IN ADMISSIONS

The question of reservations has become a very knotty socio-politico issue of the day.
Because of keen competition for limited opportunities available in the country,
governments are pressurized to indulge in all kinds of reservations for all kinds of groups
apart from reservations for Scheduled Castes, Scheduled Tribes and backward classes.
21
https://indiankanoon.org/docfragment/80507173/?formInput=vertical%20and%20horizontal
%20reservation

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Basically, any reservation is discriminatory for reservation means that as between two
candidates of equal merit, the candidate belonging to the reserve quota is preferred to the
one having no reserve quota. Many deserving candidates thus feel frustrated because of
reservation for the less deserving persons and they seek to challenge the Scheme of
reservation as unconstitutional. The relevant Articles are 14, 15 and 16 Under Article15,
reservation in educational institutions can be made for:
(1) Women under Article 15(3);
(2) Socially and educationally backward classes and the Scheduled Castes and Scheduled
Tribes under Article 15(4) and Article 15(5);
(3) Other groups not falling under Articles 15(3), 15(4) and Article 15(5).
Questions answer frequently regarding reservation of seats for admission in educational
institutions for categories of persons other than those falling under Articles 15(3), 15(4)
and 15(5). This can be done under Article 15(1) itself but the main question to consider is
whether the classification is reasonable. The tests applied here are the same as are
applicable in case of Article 14 to adjudge whether the classification is reasonable. 22
Thus, the ‘equality’ principle contained in Article 15(1) is not infringed so long
reservation is made for a class which can be identified on the basis of a rational, relevant
and intelligible differentia, and there is nexus between the differentia and the Object to be
achieved, viz., to get the best talent for admission to professional colleges. As the
Supreme Court has stated, the “socially and educationally backward” can be shown some
preferential treatment because of Article 15(4). The underlying idea is that in course of
time, these persons will be able to stand in equal position with the more advanced
sections of the society. The same principle may be applied to other handicapped sections
which do not fall under Article 15(4). Thus, reservation of seats for children of defence
personnel, ex-defence personnel, political sufferers has been upheld.23
Duty to maintain distinction between aided and unaided private educational institutions in
matters of admission of students belonging to SEBCs/SCs/STS in unaided educational
institutions. It was held that law made to effectuate Article 15(5) must provide for
compensation to the unaided institutions so as not to violate Article l4.24

22
State of Madhya Pradesh v. Nivedita Jain, AIR 1981 SC 2045
23
DN Chanchala v State of Mysore, AIR 1971 SC 1762
24
Pramati Educational & Cultural Trust v U01, (2014) 8 SCC l

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Constitution being a living organ, rights are to be determined in terms of judgments
interpreting the Constitution. Right of a meritorious student to get admission in a
postgraduate course is a fundamental and human right which is required to be protected.
Such a valuable right cannot be permitted to be whittled down at the instance of less
meritorious students.25
Fixation of a district-wise quota on the basis of the district population to the total State
population for admission to the State medical colleges has been held to be discriminatory.
The object in selecting candidates for admission is to get the best possible material for
admission to colleges Whether selection is from the socially and educationally backward
classes or from the general pool, the object of selection must be to secure the best
possible talent from the two sources. But this purpose cannot be achieved by allocation of
seats district-wise as better qualified candidates from one district may be rejected while
less qualified candidates from other districts may be admitted. 26 As the object to be
achieved is to get the best talent for admission to professional colleges, the allocation of
seats district-wise has no reasonable relation with the object to be achieved. If anything,
such allocation will result in the object being destroyed in many cases.

As a sequel to the above pronouncement, the State Government introduced a new scheme
of admissions to medical colleges. These colleges in the State were grouped into several
units and an applicant could seek admission to a unit. This scheme was also held to be
void as being violative of Article 14 because the students in some of the units were in a
better position than those who applied in other units, since the ratio between the
applicants and the number of seats in each unit varied and several applicants who seemed
lesser marks than the petitioners were selected merely because their applications came to
be considered in other units. The Supreme Court characterised the scheme as
discriminatory against some students.27
Reservation for children of residents of the Union Territories (other than Delhi) in
professional institutions has been upheld because of general backwardness of these areas
and absence of such institutions there. Also, reservation for children of government

25
Dr Saurabh Chaudri v. U0I (2004) 5 SCC 618
26
P Rajendran v State of Madras AIR 1968 SC 1012
27
A Periakaruppan v State of Tamil Nadu , AIR 1971 SC 2303

Page 18 of 22
servants posted abroad in Indian Missions has also been upheld because these persons
face (because of exigencies of service) lot of difficulties in the matter of education. 28
There could be reasonable classification based on intelligible differentia for purposes of
Articles l5(1) and l5(4). The Court said that since the government bears the financial
burden of running the medical colleges it can decide the sources from where the students
are to be admitted. “If the sources are properly classified on territorial, geographical or
other reasonable basis it is not for courts to interfere with the manner and method of
making the classification." In the instant case, the Court ruled that there was no
discrimination against the appellants on grounds only of religion, race, caste, language,
sex or place of birth and the classification made by the Central Government was
reasonable and based on intelligible differentia.
Since SCs and STs form a separate class by themselves and outside the creamy layer area
and having regard to Article 46, these socially backward categories are to be taken care of
at every stage and even in specialized institutions like IITs. The argument of maintenance
of high standards made on behalf of Delhi IIT was rejected although the Court accepted
the position. that ‘the petitioners were not able to secure the required credits as against
the stipulated minimum requirements for continuation’ of their studies.29 This is close to
Arun Shourie’s ‘Bending over Backwards’ and discourages merit and excellence.

28
Chitra Ghosh v U01, AIR 1970 SC 35: (1969) 2 SCC 228. See also, Narayan Shanna v Pankaj Kumar
Lehkar, AIR 2000 SC 72
29
Avinash Singh Bagri v Registrar, IIT Delhi, (2009) 8 SCC 220.

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 REVIEW OF LITERATURE

1. M.P. Jain, Indian Constitutional Law, New Delhi, 8th Edition, Lexis Nexis
Chapter XXII of this book pg. 978- 985 helps to understand the meaning of
reservation and the reservation in Admission.

2. Granville Austin, The Indian Constitution Cornerstone of a Nation, New Delhi,

32nd Reprint, Oxford University Press
Helps in writing the Quantum of reservation.
3. D.D. Basu, Introduction to the Constitution of India, New Delhi, 22 nd Edition,
Lexis Nexis.
Helps in basic understanding of Article 15(4).

4. Article by Department of Economics, Delhi School of Economics, University of

Delhi, Oxford University Press, New Delhi, forthcoming 2012.
Helps in data collection.
5. Article Affirmative action in India via vertical and horizontal reservations by
Tayfun Sonmez and M. Bumin Yenmez. The Department of Economics, Boston
College.
This article helps to write the difference between vertical and horizontal
reservation in India.

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 CONCLUSION

India’s affirmative action (AA) programme is primarily caste-based, although there is

some AA for women in the electoral sphere. AA in India, as elsewhere in the world, is
contentious for three reasons. First, there is considerable debate over the assessment of
caste disparities, the prima facie reason for the existence of AA – whether these are
significant at all; if yes, to what extent and in which sphere; and whether they have been
narrowing over time. Second, there is a larger debate about whether caste is the valid
indicator of backwardness or should AA be defined in terms of class/income or other
social markers, such as religion. Third, there is the overarching debate about whether AA
is desirable at all, in any form, regardless of which social identity is used as its anchor.
Affirmative action describes policies that support members of a disadvantaged group
that have suffered past discrimination through education, employment, or housing
Historically and internationally, support for affirmative action has sought to achieve goals
such as bridging inequalities in employment and pay, increasing access to education,
promoting diversity, and redressing apparent past wrongs, harms, or hindrances.
There are two types of reservation  Vertical and Horizontal The vertical reservation is
meant for socially backward class, whereas horizontal reservation is for other categories,
i.e. for women, handicapped and ex-service personnel, etc.
For the first time, in Balaji, the question was raised before the Supreme Court relating to
the extent of special provisions which the States can make under Article 15(4). In this
case, reservation up to 68% was made by the State of Mysore for backward classes for
admission to the State medical and engineering colleges. The break-up of the reservation
was as follows: 50% seats for back ward and ‘more’ backward classes; 15% seats for
Scheduled Castes; 3% seats for the Scheduled Tribes. In effect, 68% seats were reserved
in medical, engineering and other technical colleges for the weaker sections of the
society, leaving only 32% seats for the merit pool.

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